Tort Claims Against Local Government Entities

Question 1

Tort Liability

What three questions should be asked when looking at local government tort liability?

Answer 1

1. what type of government is the claim being brought against: city, town, or county
2. If it involves a city or town, is the municipality acting in a governmental (immune) or proprietary function (not immune)?
3. is the claim brought against an individual government employee or the government itself? if both, you should first ask whether the employee is personally liable (or whether qualified immunity applies) and then ask whether the local government is responsible for the actions of the employee.

Key thing: Counties and the State have Sovereign Immunity. All that means is that there is no substantive action against them except that one implied theory of K. However, regardless of the substantive claim, if you sue the state or one of its agencies (county, town, city) you must comply with the procedural requirements of VTCA.

Question 2

Counties v. Cities and Towns

Who can you not sue for personal injury torts?

Answer 2

Counties because they are formally parts of states and have sovereign immunity. This is true whether the county is acting in a governmental capacity or a proprietary capacity.

Question 3

Counties v. Cities and Towns

You cannot sue counties in tort for damages to personal property, but you can sue under…

Answer 3

under an implied contract theory under which the county has implicitly agreed to pay for property that has been wrongfully taken, damaged, or converted

In order to recover in contract, the county would need to take property for public use without just compensation which results in damage to real or personal property. This raises a claim for inverse condemnation under the Virginia Constitution. For example: The county expands a sewer line for public use. The sewer line malfunctions, damaging a person’s home and their personal property inside. The person could sue the county in implied contract for damage to their real and/or personal property under inverse condemnation

Question 4

Governmental v. Proprietary Functions

Cities, towns, and other municipal corporations can be held liable in tort but only when performing what functions?

Answer 4

proprietary. They have sovereign immunity when performing governmental functions

Question 5

Governmental v. Proprietary Functions

To determine whether a city, town, or other municipal corporation is performing a governmental or proprietary function, ask whether:

Answer 5

1. The government is acting for the benefit of all of its citizens (i.e., governmental functions); or
2. The government is acting to further its interests as a property or business owner (i.e., proprietary functions).

Question 6

Governmental v. Proprietary Functions

Examples of government functions?

Answer 6

1. Police and fire protection
2. Operation a hospital or public education facility
3. garbage collection

Question 7

Governmental v. Proprietary Functions

Examples of proprietary functions include:

Answer 7

1. Maintaining public ways, like roads and bridges
2. Providing utilities
3. Maintaining recreational facilities (although, by statute, only gross negligence claims apply in this area)
4. Operating housing authorities

Question 8

What is gross negligence?

Answer 8

the Virginia Supreme Court says gross negligence “is a degree of negligence showing indifference to another and an utter disregard of prudence that amounts to a complete neglect of the safety of such persons.” This category includes conduct that “shocks fair-minded” people.

Requires notice (at the very least) for premises liability

Question 9

Governmental v. Proprietary Functions

How is an action that involved both governmental and proprietary functions construed?

Answer 9

as governmental

Question 10

Individual Liability for Governmental Employees

Can individual official or employees be sued in tort for acting within their offical capacity?

Answer 10

Yes, but they have qualified immunity from tort liability

Immunity does not apply when the employee is acting beyond the scope of employment, authority, or discretion.

Question 11

Individual Liability for Governmental Employees

What four factors must be met for individual officials or employees to get qualified immunity?

Answer 11

1. The function must be important
2. The government must have an official interest and a direct involvement in the function
3. The governmental entity must exercise some control and direction over the employee; and
4. The employee must be exercising some discretion (it must not simply be the carrying out of a ministerial task)

Question 12

Individual Liability for Governmental Employees

Qualified immunity for employees only extends to…

Answer 12

negligence. Employees are not immune from liability for wanton (deliberate) or grossly negligent behavior.

Question 13

Respondeat Superior

Does respondeat superior apply to county employees or officials?

Answer 13

No, Municipalities are held liable only when the employee is acting in a proprietary capacity, the municipality has some authority to control the agent’s actions, and the agent was acting within the scope of his employment

Question 14

Governing Bodies

Individuals who serve on the governing bodies of any locality—which includes boards, commissions, agencies and authorities—are immune from suit for….

This immunity does not extend to…

Answer 14

1. the negligent exercise or failure to exercise discretion.
2. the unauthorized misappropriation of funds, nor does it
   extend to intentional or willful misconduct or gross negligence

Question 15

Notice

To prove a municipal corporation’s tort liability, a plaintiff must allege and show…

Answer 15

Notice to the municipality of the existence of the defect.

Question 16

Notice

What types of notice are there? explain them

Answer 16

1. Actual notice occurs when the proper municipal officer or servant has actual knowledge of the defect
2. Constructive notice occurs when the defect has existed for such a length of time that it could have been discovered through the exercise of ordinary care

Question 17

Notice

Negligence claims against any local government are typically barred unless…

Answer 17

the claimant has filed a written statement of the nature of the claim, including the time and place at which the injury is alleged to have occurred, within 6 months after the cause of action accrued.

W&M: The fact that City officials were generally aware of the incident does not provide an exception to the notice requirement. Town of Crewe v. Marler, 228 Va. 109, 319 S.E.2d 748 (1984).

Question 18

Some Basic Negligence Rules

General negligence rules apply when there is no immunity from tort liability. So plaintiffs still have to show…

Answer 18

a duty has been breached and that damages were caused by the breach.

Question 19

Some Basic Negligence Rules

Municipalities can assert the defense of…

Answer 19

contributory negligence

Question 20

Some Basic Negligence Rules

If injuries are caused by a slight defect in municipal property,…

Answer 20

the municipality will not be held liable if a reasonable person would conclude that the defect would not endanger a person exercising reasonable care.

Question 21

Some Basic Negligence Rules

If the defect is more than slight…

Answer 21

there is still no liability unless the municipality had actual or constructive notice

Question 22

Some Basic Negligence Rules

Nuisance claim?

Answer 22

Municipalities can be held liable for negligently creating or maintain a nuisance. The nuisance must unreasonably interfere with the use and enjoyment of another’s property, and the interference must be substantial rather than sporadic or isolated