Local Government Flashcards
1
Q
Sovereign immunity does not extend to claims of…
A
gross negligence.
2
Q
Virginia code specifically provides that a locality has immunity from simple negligence in the operation of…
A
various facilities, including parks, playgrounds, and recreational facilities.
3
Q
Recreational facilities are generally for the purpose of….
A
diverting and entertaining the public.
4
Q
Gross negligence is that degree of negligence which shows….
A
an utter disregard of prudence, amounting to complete neglect of the safety of another.
5
Q
Gross negligence amounts to the absense of…
A
slight diligence, or the want of scant care.
6
Q
A claim for gross negligence will fail when a danger is…
A
open and obvious.
7
Q
Every claim against a county, city, or town for negligence shall be barred unless the claimant has filed a…
A
written statement of the nature of the claim, including the time and place of the injury, within 6 months after such cause of action accrued.
8
Q
The purpose of the local notice requirement is to…
A
afford a locality the opportunity to investigate the circumstances giving rise to the alleged negligence.
9
Q
As an exception to the local notice requirement, the failure to provide such statement shall not bar a claim provided that…
A
the attorney, chief executive, or mayor of such locality had actual knowledge of the claim and the details which gave rise to it within 6 months after such cause of action accrued.
10
Q
The Constitution of Virginia confers on a property owner a right to…
A
just compensation from the government when the government takes or damages the owner’s property for public use.
11
Q
When the government takes one’s private property for public purposes, the landowner’s recourse is to…
A
file an action for inverse condemnation, based on the implied contract between the government and a landowner.
12
Q
Taking or damaging property means that the governmental action…
A
adversely affects the landowner’s ability to exercise a right connected to the property.
13
Q
To prevail on a claim for inverse condemnation, one must establish that:
A
- They own or have a right to the private property;
- The property or right has been damaged by the government;
- The taking or damaging was for “public use;” and
- The government or condemning authority failed to pay just compensation to the owner.
14
Q
(TRUE/FALSE): Drainage projects are a public use.
A
TRUE
15
Q
Could a city be liable on a theory that, by allowing additional development in a watershed, a Plaintiff’s land became a contingent retention or detention pond for overflow water?
A
Yes. This supported a finding of inverse condemnation claim in Newport News.
16
Q
Would an allegation be sufficient to maintain an inverse condemnation claim when only one flood occurred but if the property owner proved that the flooding of their property was caused by the government’s failure to maintain the waterway channel?
A
Yes. This was the case in a 2012 holding against the VDOT.
17
Q
In the case of the operation of recreational facilities, localities….
A
enjoy immunity from simple negligence.
18
Q
When one files suit against a locality within 6 months but does not provide notice of their claim prior to filing suit….
A
they may argue that the filing and service of the suit satisfied the notice requirement.
19
Q
(TRUE/FALSE): The fact that City officials are generally aware of an incident does not provide an exception to the notice requirement.
A
TRUE.
20
Q
(TRUE/FALSE): Giving notice is a mandatory and essential element of a Plaintiff’s case.
A
TRUE.
21
Q
Will soverein immunity protect a municipality against a claim of inverse condemnation?
A
NO.
22
Q
The notice requirement applies only to….
A
negligence claims.
23
Q
Will failure to notify a locality of an inverse condemnation claim bar that claim?
A
NO – inverse condemnation sounds out of contract.
24
Q
Counties are viewed as political subdivisions of the Commonwealth and thus are entitled….
A
to the same immunity as the Commonwealth, which is greater than that of cities.
25
(TRUE/FALSE): Counties actions are not assessed under the governmental-proprietary distinction applicable to municipalities.
TRUE.
26
County immunity extends to acts that would be considered....
governmental or proprietary.
27
(TRUE/FALSE): County immunity extends to cover county officers and employees who negligently cause injury to another.
TRUE.
28
The basis for a school board's immunity from liability for tortious injury has generally been found in the fact that it is...
a governmental agency or arm of the state and acts in governmental capacity in the performance of its duties imposed by law.
29
Pursuant to Virginia statute, immunity for school boards has been waived for damages arising out of...
an accident to the extent of an insurance policy covering a vehicle involved in an accident.
30
The purpose of sovereign immunity is to...
protect the public purse and provide for smooth operation of government.
31
The Supreme Court of Virginia has established factors to determine whether an employee is cloaked in sovereign immunity. These are:
(1) The **nature of the function** the employee performs;
(2) The **extent of the governmental entity's interest** and involvement in the function;
(3) The **degree of control and direction** exercised by the governmental entity over the employee, and
(4) Whether the alleged wrongful act **involved the exercise of judgment and discretion.**
32
The affirmative defense of contributory negligence must be raised....
in writing in an initial responsive pleading, or the defense is waived.
| unless it is shown by the Plaintiff's own evidence.
33
The Virginia FOIA act defines a **meeting** to include an informal assemblage of...
(1) as many as three members, or
(2) A quorum, if less than three,
of the constituent membership, wherever held, with or without minutes being taken, whether or not votes are cast, of any public body.
34
FOIA requires that public bodies shall...
(1) have all meetings open to the public, unless a specific exemption for a closed meeting applies;
(2) give notice of the date, time, and location of its meetings by posting on its website, posting area, and at the office of the clerk or cheif administrator;
(3) allow their meetings to be filmed; and
(4) keep proper minutes of meetings.
35
FOIA requires that meeting oppennes provisions be construed....
liberally, and any exemption from public access be construed narrowly.
36
FOIA defines public records to include...
all writings and recordings of any kind in the possession of a public body or its officers, employees, or agents in the transaction of public business.
37
FOIA requires that unless otherwise required by law or subject to a specific exemption, all records shall be open to...
citizens of the Commonwealth, and representatives of newspapers/magazines with circulation in the Commonwealth.
38
A public body must either provide FOIA requested documents or make one of the following responses in writing:
1. The records are being entirely withheld;
2. The records are being provided in part and withheld in part;
3. The records could not be found or do not exist;
4. It is not practically possible to provide the records or determine if they exist within the 5-day period.
39
A public body must respond to a FOIA request within....
5 working days of the request.
40
Unless otherwise provided for by the VA Constitution or by any other law, an ordinance may be adopted by...
a majority of those present and voting at any lawful meeting.
41
Does a mayor have veto power over ordinances?
Generally no, however some city charters do give the mayor authority to veto ordinances adopted by the counsel.
42
No rights to a city or town and its waterfront, public landings, streets, parks, gas, water, public places, etc. shall be sold except by....
an ordinance passed by a recorded affirmative vote of 3/4ths of the members elected to the council.
43
A public place is an area that has been....
devoted to the use of the public at large, or by the municipality itself in carrying out its governmental functions.
44
A Virginia municipality is immune from negligence while acting in its governmental function but not...
its proprietary functions.
45
A municipality engages in a government function when it exercises powers and duties....
exclusively for the public welfare.
46
Proprietary functions involve the municipality's exercise of its powers and privileges....
primarily for its own benefit.
47
In determining whether a municipality is engaged in a governmental or proprietary function, the court considers whether, in providing the services, the governmental entity is exercising....
the powers and duties of government conferred by law for the general benefit and well-being of its citizens.
## Footnote
If so, the function is governmental and the municipality is immune.
48
Virginia courts have previously held that the operation of a fire department is a.....
governmental function.
49
In contrast with the installation and maintenance of a fire hydrant, the operation of a water department for the purpose of supplying water for domestic and commercial purposes is a....
private or proprietary function.
50
If one's complaint asserts that the cause of injury is based on a municipality's proprietary function, it should survive...
the municipality's plea in bar of sovereign immunity.
51
Under the Virginia FOIA Act, public records are to be open to all citizens of the Commonwealth unless...
a specific exception excludes the record from mandatory disclosure.
52
Public records may be exempt from disclosure if they....
1. could jeopardize the public safety;
2. constitute a proprietary record or trade secret;
3. were specifically prepared for litigiation; or
4. If they relate to a matter that was properly the subject of a closed meeting.
53
Is a municipality required to provide a copy of public records at no cost to the requestor?
No
54
If the cost in producing a public record is likely to exceed ____, the city may require the requestor to pay a deposit toward the final cost of providing the copy.
$200
55
The required "notice" of a negligence claim should be filed with....
the city attorney, chief executive, or mayor of the city.
56
The two exceptions to the notice requirement are:
(1) If the city attorney, chief executive, or mayor had actual knowledge of the claim; or
(2) If the complainant was under a disability at the time the cause of action accrued.
57
If one fails to provide the required notice to a municipality of a negligence claim, their claim will be....
forever barred.
58
As an abutter of a public right of way, a property owner has a common law right of...
ingress and egress into and from his property.
59
A landowner is only entitled to....
| ingress and egress
reasonable access to his property.
60
An abutting landowner's right of access to a public road is subordinate to...
the police power of the state reasonably to control the use of streets to promote public welfare.
61
The owner of property abutting to a public road has no right to compensation when the state, in the exercise of its police powers....
reasonably regulates the flow of traffic.
62
A partial reduction or limitation of a direct access easement in the interest of public safety is....
a non-compensable exercise of a legislature's police power.
63
Unreasonable reduction or limitation of an access easement by the government is a...
compensable taking or damaging.
64
Dillons rule is a rule of strict statuatory construction that requires narrow interpretation of the powers granted....
to localities by the Commonwealth.
65
Dillons rule provides that localities only have those powers that are:
(1) Expressly granted by the General Assembly;
(2) Necessary, implicit, or incident to powers expressly granted; and
(3) Essential and indispensable, not simply convenient.
66
If there is any doubt as to whether or not a local government has been given a specific power by the General Assembly, the local government....
does not have the power in question.
67
Under the "reasonable selection method rule," when a statuatory grant of power has been given, but is silent as to the manner of its execution, a governing body has....
reasonable discretion in the manner of that execution.
68
There is no authoity in the Virginia Code that authorizes a local government to take action by approving a contract in lieu of....
voting at a public meeting.
| must be through vote of a majority at a lawful meeting.
69
Under Virginia FOIA, the transaction of public business by a local public body other than by votes at public meetings is...
prohibited.
70
VFOIA requires that a contract, in order to be properly authorized, must be...
voted on in a properly called, noticed, and open public meeting by recorded vote.
71
Acts that extend beyond authority are called...
ultra vires acts.
72
The Virginia Supreme Court has also held that gross negligence can be proved from the combination of....
several acts of simple negligence.
73
Before liability attaches, a municipality must have actual or constructive notice of a...
defect on public property, in time to have it remedied.
74
Although a city is not an insurer against accidents on its property, it has a duty to keep its property....
in a reasonably safe condition for those who use ordinary care.
75
A municipality has constructive notice of a defect in a public way when...
the defect has existed for such a period of time that the defect could have been discovered by the exercise of ordinary care.
76
The Supreme Court of Virginia has consistently held that maintenance of a city sidewalk is a...
proprietary function, and not a governmental function.
77
(TRUE/FALSE): A local city council may meet and transact public business by email, so long as all emails are available for public disclosure under Virginia FOIA.
FALSE.
## Footnote
No public body shall vote by telephone or other electronic means. No meeting shall be conducted where members are not physically assembled to discuss or transact public business.
78
Dillon's rule is a rule of strict construction, as such, any ambiguity must be resolved....
against the local government.
79
The only exceptions to the in-person meeting requirement for local governments are....
1. When the Govenor has declared a state of emergency; or
2. When a quorum is physically present but one member needs to participate electronically.
80
If, in response to a FOIA request, the custodian of records states that they need more time, they must provide an additional response within....
an additional 7 days.
81
(TRUE/FALSE): Existence of a defect on public property for one or two days does not constitute constructive notice as a matter of law.
TRUE.
82
The recreational facility immunity given to municipalities is one of....
statute.
83
Notice to a municipality is deemed filed when it is....
received in the office of the offical to whom the notice is directed.
84
Who bears the burden of proving that notice has been given to a municipality prior to suit?
The claimant
85
Records requested in a FOIA request do not need to be provided if the requestor was...
not a citizen of the Commonwealth.
86
Under the sovereign immunity determination, routine ministerial acts which involve no discretion are considered...
proprietary.
87
Road maintenance has been considered to be a municipal function that is...
proprietary.
88
Garbage collection has been considered to be a municipal function that is...
governmental.
89
While in certain circumstances, a municipal employee may share in his employer's sovereign immunity, a municipal employee is never entitled to immunity for....
gross negligence.
90
If the Court concludes that an employee's job is in furtherance of a proprietary activity [which does not entitle the city to sovereign immunity], the employee will also....
not be entitled to sovereign immunity.
91
If a Plaintiff alleges gross negligence against a municipal employee, if a city is immune, the employee....
may not be.
| gross neg. is the distinguishing factor here.
92
Does the notice requirement apply to municipal employees?
No -- a Plaintiff is not required to give notice to a municipal employee, only the locality.
93
Sovereign Immunity is a subject matter jurisdictional issue, thus...
it cannot be waived, absent legislative action by the General Assembly.
| It can be raised on appeal.
94
The Virginia Tort Claims Act waives the sovereign immunity of the Commonwealth for ...
negligent or wrongful acts of its employees acting within their scope up to $100,000.
95
The VTCA does not apply to...
counties, cities, or towns.
96
The Recreational facility statute does not waive sovereign immunity for...
counties, or the Commonwealth.
97
A public nuisance is an...
act, omission, or use of property which is hurtful to the health, tranquility, morals, or decency of a community.
98
The U.S. and Virginia Constitutions allow government entities to take:
(1) private property,
(2) for public use,
(3) with just compensation.
99
Snow removal is a function of the government that is...
governmental.
## Footnote
weather emergencies relate directly to the general health, safety, & welfare.
100
Routine steet and parking lot maintenance is a function of the government that is...
proprietary.
101
The abatement of a nuisance by a public body is not considered to be...
a compensable taking or an unlawful taking.
102
A taking is not for public use if the primary use is being taken for...
private gain, private benefit, private enterprise, increasing jobs, increasing tax envue, or economic development.
103
The governmental taking of a transporation facility is a....
taking for public use.
104
Whenever it is determined that a lawful taking by the government has occurred, the issue of just compensation should be determined by....
condemnation jurors, appointed by the condemning authority.
105
The Virginia Constitution provides that compensation in a taking case shall be...
no less than the value of the property taken, including lost profits and lost access, along with any damage caused by the taking.
106
Lost profits awards for a condemnation case is limited to...
net income for three years prior to the valuation date, provided that lost profits must result from an inability to relocate the buiness in a reasonable way.
