Sovereign Immunity Flashcards
Are counties subject to tort claims? Are cities and towns?
No. They are absolutely immune for tort claims under $100,000.
BUT No immunity for cities and towns
What claims must be “presented” to the governing body for allowance? What happens if the governing body disallows the claim?
Contract and equitable monetary claims against counties
The claimant may appeal to the circuit court within 30 days after notice of disallowance, but not after six months.
When is a city/town IMMUNE for torts resulting from the acts/omissions of its employees?
When acting within its public or government capacity, including:
- police forces
- fire departments
- public educational facilities
- garbage removal service
- emergency response (cleaning streets) to hurricane damage
- hospitals and nursing facilities
- operation of jails
- design and layout of roads, and
- maintenance of traffic lights
Do towns/cities enjoy tort immunity when acting in their proprietary capacity? When does that occur? Examples?
No.
Proprietary functions are those that promote the comfort, safety, and happiness of residents, much like a business corporation, such as operation of a waterworks.
Examples:
- Road Maintenance. Although design of roads is a “governmental function,” maintenance of streets is “proprietary,” which means that the municipality can be liable if it fails to exercise reasonable and ordinary care to keep them in a reasonably safe condition. (Must have notice of defect).
- Provision of public water, sewage, storm drainage, gas, and municipal electric power are proprietary functions. Nevertheless, the doctrine of res ipsa loquitur does not apply, and proof of malfunction (e.g., sewer line blockage) does not itself establish liability.
- Housing Authorities. A municipal housing authority does not enjoy sovereign immunity – it is deemed a proprietary function.
What is the test for distinguishing governmental from proprietary functions? What happens when a particular function involves both governmental and proprietary aspects?
The Supreme Court has said that a function is governmental if it is the exercise of an entity’s political/discretionary/legislative authority
Generally speaking, when the allegedly negligent act is one involving the maintenance or operation of the service being provided, the function is deemed to be proprietary.
The issue is whether, in providing such 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.
The governmental aspect prevails if a particular function involves both governmental and proprietary aspects.
When are public employees entitled to share in the localities tort immunity?
For top-level employees: automatically share the immunity of the entity for which they work.
Low-level employees share in immunity for acts of simple negligence when performing governmental functions and where the interests of the sovereign in extending immunity are sufficiently strong.
What are the four factors used in determining whether lower-level employees receive immunity?
1) The nature of the function performed by the employee (public v. private)
2) The extent of the entity’s interest/involvement in the function
3) The degree of control/discretion exercised by the entity;
4) Whether the wrongful act involved the exercise of judgment/discretion (more discretion = more likely candidate for immunity).
Can an independent contractor claim immunity?
No.
Do schools boards enjoy sovereign immunity in tort? How about for a bus accident where the school has insurance?
Yes. So do principals and teachers and coaches and even bus drivers!
Perversely, the school is liable for up to the amount of the coverage.
When is a municipality liable for torts connected with its recreational facilities?
Almost never - only in cases of gross / wanton negligence.
What factors determine whether government-employed doctors are immune?
1) The nature of the function performed by the employee (public v. private)
2) The extent of the entity’s interest/involvement in the function
3) The degree of control/discretion exercised by the entity;
4) Whether the wrongful act involved the exercise of judgment/discretion (more discretion = more likely candidate for immunity). Paradoxically, it seems that more discretion here (akin to independent contractor) = less likely candidate for immunity
Are police / firefighters immune for torts arising out of non-emergency situations (e.g. ordinary traffic)?
No. They are not engaged in uniquely governmental pursuits.
Are employees immune for gross negligence and intentional torts? May a locality be dues directly in such actions?
No, even if they are immune for ordinary negligence. No, though may help pay the judgment (insurance or indemnification)
What is the six-month notice requirement? How can a claimant comply?
VA statute bars liability for counties, towns, and cities in negligence cases unless notice in writing is given to a designated officer of the locality within six months after the cause of action arises, unless the injury prevents such notice.
The letter must describe the nature of the claim and the date, time, and place where the injury occurred.
The notice must be either to: (i) the city/county attorney; or (ii) the mayor/chief executive.
Any form of delivery is permitted, but the statute requires STRICT COMPLIANCE.
Are cities/town liable for injuries resulting from a nuisance, even if performing one of its authorized activities?
What about counties?
Does the six-month notice requirement apply to nuisance claims?
Yes, provided that it negligently created the dangerous situation.
No.
Yes.
