sovereign immunity Flashcards
what is sovereign immunity
Sovereign immunity refers to the fact that the government cannot be sued without its consent
Sovereign immunity was derived from British common law doctrine based on the idea that the King could do no wrong.
SUING A COUNTY
– CLAIMS
– REQUIREMENTS
PRELIMINARY NOTE:
A county is regarded as an instrumentality of the commonwealth, as such, it can only be sued in the manner and under the circumstances authorized by the sovereign.
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TORT
Counties are absolutely immune from liability in tort. The VTCA waives sovereign immunity of the Commonwealth for certain tort claims, but does not apply to cities, towns or counties.
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CONTRACT AND EQUITABLE MONETARY CLAIMS AGAINST COUNTIES
You may sue counties on certain contract and equitable monetary claims
Procedure:
— Claim must be presented to the governing body for allowance.
— if the governing body disallows the claim:
(1) the claimant may appeal to the circuit court within 30 days of notice of disallowance
AND
(2)complaint must be filed in Circuit within 6 MONTHS after claim was disallowed
AND
(3) complaint must allege that claim has been presented to governing body [otherwise is demurrable]
Exceptions – don’t have to follow procedure for:
– tax refund claims
– suits for non-monetary relief
– mandamus
** might have to do notice of claims as stated in the card about suing cities and towns
SUING THE COMMONWEALTH
Pursuant to the doctrine of sovereign immunity, the Commonwealth is absolutely immune from liability on all claims unless expressly waived.
In Virginia, the only statute that waives the Commonwealth’s sovereign immunity is the Virginia Tort Claims Act.
VCTA CLAIM REQUIREMENTS/LIMITS
(1) you may sue the commonwealth for negligent or wrongful act or omission of any employee while acting in the scope of his employment under circumstances where the commonwealth, if a private person, would be liable to the claimant for loss or injury
(2) cap on damages is $100k
(3) notice of claims sent to AG or Head of Risk Management of the Commonwealth within 1 year of the date of the incident
(4) SOL = 2 years from injury
(5) SOP = on AG
how to treat regular vs. chartered towns
regular towns = part of counties
chartered towns = treat like cities
SUING CITIES AND CHARTERED TOWNS IN TORT
NOTICE OF CLAIMS:
– in writing
– describing the nature of the claim, date, time and place of injury
– within 6 months
– to mayor, chief exec, or city attorney
– unless the injury prevents giving notice
– any form of delivery allowed [but signed US mail return receipt is enough to establish a prima facie showing that delivery was accomplished]
– strict compliance
TORT LIABILITY
Counties, cities, and towns will be immune from negligence, gross negligence, and intentional torts of their agents when performing “governmental functions” but not “proprietary functions.”
If the action is of both a governmental and proprietary nature, as long as there is meaningful governmental function involved, the activity will be immune from negligence liability
governmental functions vs proprietary functions
GOVERNMENTAL FUNCTIONS: related to an essential government act in service of the health and safety of its citizens; typically involves discretion and judgment, or political or legislative authority — government exercises the powers and duties of government conferred by law for the general benefit and well-being of its citizens
EXAMPLES:
- police forces
- fire depts
- public education
- garbage removal
- Emergency response to hurricane damage (street cleaning)
- hospitals and nursing homes
- operation of jails
- design and layout of roads
- maintenance of traffic lights
- road design
- nursing home
PROPRIETARY FUNCTIONS OF CITIES AND TOWNS: promote comfort and happiness of residence, much like a business corporation, such as the operation of waterworks; tend to be ministerial acts involving maintenance or operation of service
EXAMPLES:
- maintenance or operation
- road maintenance [must show that municipality had reasonable notice of defect and sufficient time to remedy]
- provision of public water, sewage, storm drainage, gas, and municipal electric power
[but res ipsa do not apply]
- housing authorities
explain how to impose liability on officers and employees of localities [not ICs]
(1) Is there a possibility of immunity?
– If the governmental entity has no immunity for the action [proprietary function, etc.], the employee will have no immunity
– If the governmental entity has immunity for the action, the employee MIGHT have immunity
(2) Is the employee a “top” level employee? Top level employees share the immunity of the entity for which they work automatically.
– governor
– mayors
– legislators
– city or county council members
– heads of major depts and functions
– judges
– members of town councils
– Board of supervisors
– commissions
(3) Is the employee a lower-level employee? Lower level public employees performing governmental functions may be cloaked in sovereign immunity as to acts of simple negligence where the interests of the sovereign in extending immunity are sufficiently strong.
Virginia applies a four-factor test to determine whether the interests of the sovereign in extending immunity are sufficiently strong:
(1) nature of the function performed by employee
[public = more immunity]
(2) extent of the governmental entity’s interest and involvement in the function
[more involvement = more immunity]
(3) the degree of control and direction exercised by the governmental entity
[more control makes it look more governmental]
(4) whether the wrongful act involved the exercise of judgment and discretion
[more discretion = more immunity]
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When an employee shares in sovereign immunity, it only cloaks them in immunity for acts of ORDINARY NEGLIGENCE. Allegations of gross negligence or intentional tortious conduct may pierce through the sovereign immunity defense to sue the employee personally.
what are the special categories of employees whose sovereign immunity defense may depend on the factual circumstances?
SCHOOL BOARDS, ADMINISTRATORS, TEACHERS, BUS DRIVERS
- school boards have Sov. Imm.
- Principals, teachers, coaches have Sov. Imm.
- School bus drivers share in sov. imm. of the school board while driving kids around [i.e. for gov’t purposes]
- School bus accidents rules
(a) if school board has insurance for bus accidents, the board has NO immunity for liability up to the amount of insurance coverage
= you can sue the insured school board, show that its driver was guilty of ordinary negligence, and recover
[but you cannot sue the bus driver because he shares in immunity of the school board which, but for the insurance statute, is immune from suit unless you allege gross negligence]
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RECREATIONAL FACILITIES
- Municipality only liable for gross or wanton negligence of the operation of a recreational facility
- employee of a recreational coliseum driving a trash truck miles from the facility was engaged in immune activities derived from the needs of operating the immune facility
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DOCTORS
– apply 4 factor test
– uva doctors not immune because they looked like independent contractors who could set and collect own fees, choose patients, and choose treatments
- MCV doctors and public clinic doctors were immune from ordinary negligence claims - they could not charge fees independently, acted for the government
– attending physician, fully licensed and supervising residents and interns had unfettered medical discretion and was not immune
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DRIVING SITUATIONS
- police, firefighter, and EMS in their functions as such during work are engaged in governmental functions and are immune from claims of ordinary negligence
- gov’t employees driving in non-emergency situations [ordinary traffic, returning to office after completing duties, non-emergency help calls] are not engaged in governmental functions and are not immune
to what extent may you sue localities for the gross negligence or intentional wrongs of employees?
You may not sue localities directly for the gross negligence or intentional wrongs of employees
localities insurance or indemnification obligations may help pay the jdugment when you sue the employee personally tho
nuisance claims against cities or towns [not counties]
GENERAL RULE: a city or town will be liable to the same extent as a private party for injuries resulting from the creation or maintenance of a nuisance
WHAT IS A NUISANCE: any dangerous or hazardous situation [even when created while performing governmental functions]
TYPES OF NUISANCE CLAIMS
(1) conditions created by authorized activity
— sue locality for negligent creation of a dangerous situation
[even if gov’t function]
[ex: failure to put barriers around a deep excavation site during construction of an authorized public works project]
(2) dangers created during unauthorized activity
— sue locality for simply creating a dangerous situation, no negligence showing is required
[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 the locality’s actions are not negligent]
NOTICE OF CLAIM REQUIREMENT
- 6 month notice of claim to mayor, city attornry or chief exec
notice of claims
required any time you sue a city, county, or town
NOTICE OF CLAIMS:
– in writing
– describing the nature of the claim, date, time and place of injury
– within 6 months
– to mayor, chief exec, or city attorney
– unless the injury prevents giving notice
– any form of delivery allowed [but signed US mail return receipt is enough to establish a prima facie showing that delivery was accomplished]
– strict compliance
claims BY Commonwealth, counties, cities, towns
TYPES OF CLAIMS
sue as plaintiffs for tort and K
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STATUTE OF LIMITATIONS DEFENSE
SOL bars do not run against the commonwealth
SOL DOES run against localities
equitable defenses may not be raised against the locality [ex: no estoppel action]
