Sovereign Immunity

Question 1

tort claims against counties

Answer 1

counties are absolutely immune from liability in tort. The Virginia Tort Claims Act waives sovereign immunity for the Commonwealth for tort claims within dollar and other limits does not apply to cities, towns, or counties

Question 2

presenting the claim

Answer 2

no action may be maintained against a county upon any claim or demand until the claim is presented to the governing body for allowance. if the governing body refuses or neglects to act when given this opportunity, then a lawsuit may be brought

Question 3

appealing when governing body disallows after presentment

Answer 3

if a governing body disallows the claim, the claimant may appeal to the circuit court within 30 days after notice of disallowance, a notice of appeal must be filed with the clerk of the county and a complaint must be filed in the circuit court within 6 months after claim was disallowed by the county. failure to allege that the claim has been presented to the governing body makes the complaint demurrable.

procedure is not required for tax refund claims, suits for nonmonetary relief, or mandamus petitions

Question 4

tort liability for cities and towns

Answer 4

cities and towns are immune from tort liability when acting in governmental capacity. when acting in a proprietary capacity, town/city does not have sovereign immunity

Question 5

governmental capacity

Answer 5

generally involve some level of discretion. examples:

• police
• fire department
• public educational facilities
• garbage removal
• emergency response to hurricanes
• hospitals and nursing facilities
• operation of jails
• design and layout of roads
• maintenance of traffic lights

Question 6

proprietary functionos

Answer 6

those that promote comfort, safety, and happiness of residents. no sovereign immunity.

• road maintenance - so city/town can be liable if it fails to exercise ordinary care to maintain roads in safe condition. must have reasonable notice of defect and sufficient time to remedy defect for liability
• provision of public water, sewage, storm drainage, gas, and electricity - but res ipsa does not apply and proof of malfunction doesn’t necessarily establish liability
• housing authorities

Question 7

difference between proprietary and governmental functions

Answer 7

function is governmental if it is the exercise of an entity’s political, discretionary, or legislative authority. If the function is ministerial act and involves no discretion

Question 8

what if a function is proprietary and governmental

Answer 8

if function is both, the governmental aspect prevails so the government will be immune from negligence liability

Question 9

liability of officers and employees

Answer 9

is the employing governmental unit immune?

• if the govt has no immunity, the worker cannot be immune
• if entity is immune, must be determined if employee shares the immunity

should the individual employee share immunity

• top level people like governors, mayors, legislators, etc. share the immunity of the entity for which they work automatically.
• lower level employees - lower level public employees may have immunity as to acts of simple negligence where the interests of the sovereign in extending immunity are sufficiently strong

Question 10

four factor test for immunity of employee

Answer 10

• nature of function performed by employee
• extent of governmental entity’s interest and involvement in the function
• degree of control and direction exercised by governmental entity over the employee (more control = more likely to be immune)
• whether the alleged wrongful act involved the exercise of judgment and discretion

Question 11

independent contractors

Answer 11

cannot claim sovereign immunity

Question 12

immunity of school boards, administrators, teachers, and bus drivers

Answer 12

school boards enjoy sovereign immunity in tort, as do principals, teachers and coaches. bus drivers share immunity of the school board (but maybe not if bus is empty)

Question 13

insurance

Answer 13

in the case of school bus accidents, if the board has any insurance for such claims, there is no immunity from liability up to the amount of coverage.

can sue insured school board, show driver was guilty of negligence, and recover, even though you couldn’t recover from driver for ordinary negligence

Question 14

recreational facilities

Answer 14

municipalities are only liable for gross or wanton negligence in the operation of a recreational facility. an employee of a recreational facility driving a trash truck miles away from the facility was found immune because his activities were derived from operation of immune facility

Question 15

driving in emergences

Answer 15

police officers chasing fleeing lawbreaker are engaged in governmental functions. firefighters and ambulances racing to an emergency are acting in governmental function. on the other hand, government employees driving in non-emergency situations are not immune from claims of ordinary negligence

Question 16

employee liability for gross negligence and intentional torts

Answer 16

employees can be sued for gross negligence and intentional torts

Question 17

locality liability for gross negligence and intentional torts

Answer 17

locality may not be sued directly for gross negligence or intentional wrongs by employees. employees may be sued personally, and locality’s insurance or indemnification obligations may help pay judgment

Question 18

notice requirement for negligence cases

Answer 18

statute bars liability for counties, cities, and towns in negligence unless notice in writing is given to designated officer of locality within 6 months after cause of action arises, unless injury prevents giving notice. letter or other written notice must describe nature of claim and date, time, and place where injury take place. notice must be to county, city, or town attorney or the mayor or chief executive. any form of delivery is permitted but if there is a contest, claimant bears burden to show timely delivery. signed mail return receipt is establishes prima facie showing of delivery.

Question 19

nuisance claims against cities or towns

Answer 19

city or town will be liable to the same extent as a private party for injuries arising from creation or maintenance of a nuisance, which can be any dangerous or hazardous situation. even governmental acts can give rise to nuisance claims.

Question 20

nuisance created during authorized activity

Answer 20

when locality is performing a properly authorized act, it can be sued for nuisance if it negligently creates a dangerous situation (failing to put barricade around excavation site)

Question 21

nuisance created during unauthorized activity

Answer 21

localities are liable if the activity causing the nuisance was unauthorized by law - simply upon showing that any dangerous situation resulted.

Question 22

notice requirement nuisiance

Answer 22

because negligence plays a role in showing nuisance liability, 6 month notice requirement applies to nuisance claims as well

Question 23

claims by counties, cities, and towns

Answer 23

localities can sue as plaintiffs in tort or contract claims. statute of limitations doesn’t run against Commonwealth, they run against localities.

Question 24

equitable defenses against locality

Answer 24

cannot raise equitable defenses against locality