Sovereign Immunity

Question 1

What liability do counties face for tort?

Answer 1

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

Question 2

When may a county be sued?

Answer 2

In actions for contract and equitable money claims (e.g., inverse condemnation)

Question 3

What is required to bring a claim against a county before filing suit?

Answer 3

The claim must be presented to the governing body for allowance
* If the governing body refuses or neglects to act when given this opportunity to resolve the matter, then a lawsuit may be brought

Question 4

When does a city or town enjoy sovereign immunity?

Answer 4

When acting within its public or governmental capacity, town enjoys sovereign immunity
* Examples are police forces, fire departments, and garbage disposal

Question 5

When does a city or town NOT enjoy sovereign immunity?

Answer 5

When engaged in a proprietary function

Question 6

When is a function proprietary?

Answer 6

When it promotes the comfort, safety, and happiness of residents, such as operation of a waterworks
* Common examples are (1) road maintenance (but not design) (2) provision of public water, sewage, storm drainage, gas, and municipal electric power) housing authorities

Question 7

Explain the 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
• Function is generally propreitary when the allegedly negligent act is one involving maintenance or operation of the service being provided (i.e., “ministerial” and involves no discretion)

Question 8

What happens where governmental and proprietary functions coincide?

Answer 8

The governmental aspect prevails–whole action becomes governmental and is immune from negligence liability

Question 9

How to determine if officers and employees are immune

Answer 9

(1) Is the employing governmental unit immune?
* If the governmental body has no immunity, workers cannot be immune

(2) If entity is immune, determine whether employee is entitled to share
* Governors, mayors, legislators, city or council members, heads of major departments and functions, and judges share immunity of the entity for which they work automatically
* Lower-level employees who perform governmental functions may have sovereign immunity for negligence where interests of the sovereign in extending immunity are sufficiently strong

Question 10

What is the test to determine whether lower-level employees who perform governmental functions have sovereign immunity for negligence?

Answer 10

(1) The nature of the function performed by the employee (public vs. private function–more private, more liability)
(2) The extent of the governmental entity’s interest and involvement in the function (does it matter to government in what manner job gets done)
(3) Degree of control and direction exercised by governmental entity over employee (more control looks more like governmental activity that should be immune) AND
(4) Whether wrongful act involved exercise of judgment and discretion (more judgment employee is asked to exercise, more likely to get immunity)

Question 11

Do independent contractors enjoy sovereign immunity?

Answer 11

NO–even if employing locality is immune

Question 12

Do school boards, administrators, teachers, and bus drivers enjoy sovereign immunity?

Answer 12

Yes

Question 13

What is the special rule regarding school bus accidents?

Answer 13

If the board has any insurance for such claims there is no immunity from liability up to the amounts of coverage
* This means you can sue insured school board, show driver was guilty of ordinary negligence, and recover, even though you could not impose liability on driver himself without showing gross negligence

Question 14

What is the rule for recreational facilities?

Answer 14

• No liability for ordinary negligence
• Liable only for gross or wanton negligence in the operation of the facility
• Held that employee of recreational coliseum driving trash truck miles from facility engaged in immune activities derived from the needs of operating the immune facility

Question 15

What are the rules for “driving” situations (e.g., police officers/ambulances)

Answer 15

• Government employees (e.g., police officers and firefighters) driving in an emergency situation (fleeing criminal/going to emergency) are acting in a governmental function
• Government employees driving in a non-emergency situation are not immune from claims for ordinary negligence

Question 16

How far does sovereign immunity extend for employees?

Answer 16

Shields from ordinary negligence but can be sued for gross negligence and intentional torts

Question 17

If an employee commits gross negligence or an intentional tort, may locality be sued directly for these wrongdoings?

Answer 17

NO–employees may be sued personally, and the locality’s insurance or indemnification obligations may help pay the judgment

Question 18

What happens in a contract claim against counties?

Answer 18

1. Claim must be presented against the local government
2. If government body disallows claim, may appeal to circuit court within 30 days after notice of disallowance (given to county clerk) AND complaint must be filed in circuit court within 6 months after claim was disallowed by county (must allege claim has been presented to governing body)

Question 19

What is the proper procedure for filing a negligence claim against a locality?

Answer 19

A statute bars liability for counties, cities, and towns in negligence cases unless notice in writing is given to designated officer of the locality within 6 months after cause of action arises (unless injury prevents giving notice)
* Letter must describe nature of claim and date, time and place where injury occurred

Question 20

To whom must notice be given in this 6-month period when a locality is being sued in negligence?

Answer 20

Must be to either: (1) the county, city, or town attorney, or (2) mayor or chief executive of locality
* Strict compliance required

Question 21

Against whom may a nuisance claim be asserted?

Answer 21

City or a town but not a county

Question 22

To what extent will a city or town be liable in nuisance?

Answer 22

To the same extent as a private party for injuries resulting from creation or maintenance of a nuisance
* This can be any dangerous or hazardous situation
* Even dangers created performing “governmental functions” can be the basis for a nuisance action

Question 23

May a locality (but not a county) be sued in nuisance for performance of one of its properly authorized activites?

Answer 23

YES–if it negligently creates a dangerous situation
* Example–failure to put barriers around a deep excavation site during construction of an authorized public works project

Question 24

May a locality (but not a county) be sued in nuisance for a dangerous situation resulting from unauthorized activity?

Answer 24

Yes–and no negligence needs to be shown (i.e., just showing that any dangerous situation resulted)
* Example–in running a local “wind farm” for electricity generation without General Assembly authorization, any dangerous condition that results will give rise to liability, even if locality’s actions are not negligence

Question 25

What are the notice requirements for nuisance claims against municipalities?

Answer 25

Since negligence plays a role in showing nuisance liability for municipalities, the 6-month notice requirement for nelgigence claims applies to nuisance claims as well

Question 26

May localities sue as plaintiffs for torts or contract claims?

Answer 26

YES–while SOLs usually do not run against Commonwealth, statutory time bars DO run against localities
* But equitable defenses may not be raised against locality

Question 27

If a governing body (of a county) disallows a claim, what is the claimant’s recourse?

Answer 27

The may appeal under two important deadlines:
1. Within 30 days after notice of disallowance, notice of appeal must be filed with the clerk of the county AND
2. Complaint must be filed in circuit court within 6 months after claim was disallowed (and failure to allege in the action that the claim was presented makes the complaint demurrable)