Sovereign Immunity/Notice of Tort Claim

Question 1

Commonwealth (sovereign immunity)

Answer 1

The Virginia Tort Claims Act waives sovereign immunity of the Commonwealth for tort claims for up to $100,000.

It does not apply to cities, towns, or counties.

Statute of limitations usually do not run against the Commonwealth.

Question 2

Counties (sovereign immunity rule)

Answer 2

Counties are absolutely immune from liability in tort.

Counties are instrumentalities of the Commonwealth and may be sued ONLY in the manner and under the circumstances authorized by the sovereign.

Question 3

Process for bringing a claim against a county

Answer 3

Under Va. Code, no action may be maintained against a county on 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 to resolve the matter, then a lawsuit may be brought.

If the governing body disallows the claim, the claimant may appeal to the circuit court under 2 important deadlines:
* 30 days - File appeal with the clerk of the county within 30 days of notice of disallowance
* 6 months - File complaint within 6 months after the claim was disallowed by the county.

Question 4

Cities and Towns (soveregin immunity)

Answer 4

When acting within its public or government capacity (not proprietary functions), a city or town enjoys sovereign immunity for claims arising from the acts or omissions of employees and agents

If both governmental and proprietary functions, the governmental aspect prevails

Question 5

Government functions (city/town sovereign immunity)

Answer 5

the exercise of an entity’s political, discretionary, or legislative authority and = immune.

(exception for negligently created nuisances)

Question 6

Proprietary Functions (city/town sovereign immunity)

Answer 6

Promote the comfort, safety, and happiness of citizens and are NOT immune.

This includes, for some reason, road maintenance, public water, sewage, storm drainage, gas and power, and municipal housing authorities.

Question 7

Liability of Officers and Employees generally

Answer 7

If the government body has no immunity, then its workers cannot be immune.

If the entity is immune, you must determine if the individual employee is entitled to share the immunity.

Question 8

Liability of top-level people (if entity is immune)

Answer 8

share the immunity of the entity

Question 9

Liability of lower-level employees who perform government functions (if entity is immune)

Answer 9

4 factor test:
1. The nature of the function (public - liable vs. private - not liable)
2. The extent of the governmental entity’s interest and involvement in the function (more interest = more immune)
3. The degree of control and direction exercised by the governmental entity over the employee (more control = more immune) AND
4. Whether the alleged wrongful act involved the exercise and judgment (the employee’s) (more discretion = more immune)

Question 10

Liability of Independent contractors

Answer 10

cannot claim sovereign immunity even if the employing locality is immune

Question 11

Gross Nelgigence and Intentional Torts

Answer 11

Sovereign immunity does not protect employee from gross negligence or intentional torts (just ordinary negligence)

Locality may not be sued directly for employee’s gross negligence or intentional torts

Question 12

City/Town notice requirement to bring suit

Answer 12

• notice in writing must be given to a designated officer within 6 months of the cause of action arising (or else suit is barred)
• must describe the nature of the claim and the date, time, and place where the injury took place
• Notice must be given either to (1) city/town/county attorney; (2) mayor or chief executive of the locality

Question 13

Nuisance Claim requirements for city/towns

Answer 13

• liable to the same extent as a private entity for nuisance claims
• Even if nuisance created by a governmental function, can be sued for nuisance if the locality negligently creates a dangerous situation
• Localities liable if the activity causing the nuisance was unauthorized by law - simply upon showing that any dangerous situation resulting (no negligence showing necessary)
• 6-month notice requirement for negligence claims applies

Question 14

Claims by citites and towns

Answer 14

• SOL runs against localities
• Equitable defenses may not be raised against localities.