Sovereign Immunity Flashcards
May there be tort claims against counties?
No, counties are absolutely immune from liability in tort
T/F: The Virginia Tort Claims Act does not apply to cities, towns, and counties.
True.
Presentment of Claim Requirement
Under the Virginia Code, 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 disallows the claim, what are the two important deadlines the claimant must meet when appealing to the circuit court?
- within 30 days after notice of dis-allowance 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 the claim was disallowed by the county
The 30 day notice of appeal and 6 months to bring suit in court procedure is NOT required for which types of cases?
- tax refund claims
- suits for non-monetary relief
- mandamus petitions
Is there tort liability for cities and towns?
Yes, there is only sovereign immunity for governmental functions.
- This means that when acting within its public/governmental capacity, a city or town enjoys sovereign immunity for claims arising form the acts or omissions of employees and agents
Governmental functions where immunity is enjoyed by cities and towns include:
- police forces
- fire departments
- public educational facilities
- garbage removal service
- emergency response to hurricane damage (e.g. cleaning streets)
- hospitals and nursing facilities
- operation of jails
- design and layout of roads, and
- maintenance of traffic lights
What are the proprietary functions of cities and towns?
those that promote the comfort, safety, and happiness of residents
Do cities and towns enjoy sovereign immunity in tort in its proprietary capacity?
NO
What are some examples of proprietary functions?
- road maintenance
- provision of public water, sewage, storm drainage, gas, and municipal electric power
- housing authorities
What happens if a particular function has both governmental and proprietary aspects?
The governmental aspect prevails and the activity is immune from negligence liability
The Supreme Court has said that a function is governmental if it is the exercise of an entity’s _________________ or ___________________.
political discretion or legislative authority
Sharing Immunity: Top Level People
- Governors, mayors, legislators, city or county council members, heads of major departments and functions, and judges share the immunity of the entity for which they work AUTOMATICALLY
- On the local level, members of town councils, boards of supervisors, and similar boards and commissions are generally automatically immune if the local entity is
Sharing Immunity: Lower Level Employees
Lower level public employees performing governmental functions may be cloaked with sovereign immunity as to acts of simple negligence where the interests of the sovereign in extending immunity are sufficiently strong`
Four factor test for measuring immunity
- nature of the function performed by the employee [public vs. private function];
- extent of the governmental entity’s interest and involvement in the function [does it matter to the government in what manner the job gets done?];
- degree of control and direction exercised by the governmental entity over the employee [the more control, the more it looks like a governmental activity that should be immune]; and
- whether the alleged wrongful act involved the exercise of judgment and discretion [the more discretion we ask the employee to exercise, the more likely it is s/he should be given immunity]
Can an independent contractor claim sovereign immunity?
No, not even if the employing locality is immune.
School boards, administrators, teachers, and bus drivers
School boards enjoy sovereign immunity in tort as so principals, school teachers and coaches.
School bus drivers share the immunity of the school board, but in the case of school bus accident, if the bard has any insurance for such claims, there is no immunity from liability up to amount of coverage.
Recreational Facilities
- Accorded special treatment by statute
- Municipality is liable only for gross or wanton negligence int he operation thereof
The Doctor Cases
Immunity for government-employed doctors measured by four factor test
- UVA doctors were held not immune because looked more like independent contractors whereas MCV doctors and public clinic doctors who cannot charge independently and had govt imposed limits on what they could prescribe were found to be govt actors with qualified protection from ordinary negligence
“Driving” Situations: police, firefighter, ambulance
Govt employees driving in non-emergency situations, such as ordinary traffic, returning to the office after completing duties, or while on non-emergency help calls, are not engaged in uniquely governmental pursuits and are not immune from claims for ordinary negligence
Can a locality be sued directly for gross negligence or intentional wrongs done by employees?
No, but the employees may be sued personally, and the locality’s insurance or indemnification obligations may help pay the judgment
Six Month Notice Requirement in Negligence Cases
Notice in writing must be given to a designated officer of the locality within 6 months after the cause of action arises (unless injury prevents from doing so)
Who must the notice be to, and what must it state?
- Must be to either the county, city, town attorney, or the mayor or chief executive officer of the locality.
- it must describe the nature of the claim and the date, time and place where the injury took place
Which types of localities will be liable to the same extent as a private party for injuries resulting form the creation or maintenance of a nuisance?
A city or town
BUT NOT A COUNTY!!!
Nuisance Claims Against Cities or Towns (BUT NOT COUNTIES)
- conditions created in authorized activity
- dangers created during unauthorized activity
- notice requirement applies to nuisance claims against municipalities
Claims BY counties, cities and towns
Localities CAN sue as plaintiffs for tort and contract claims
May equitable defenses be raised against a locality?
No. For example, a locality cannot be estopped from making a claim because of its prior actions or statements to the parties
Role of statutes of limitations
While statutes of limitations usually do not run against the Commonwealth of Virginia, statutory bars DO RUN against counties, cities, and towns!
