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By Jason J. Ham

[Editor's note: This is a very subtle field of law. We urge you contact Mr. Ham with your questions.]

Sovereign immunity is an ancient rule of law which protects some governmental entities and their employees from certain kinds of lawsuits. The sovereign referred to in the rule was originally the king. Because the king was the source of law, the king could not violate the law. Immunity means "freedom or exemption from obligation in any respect." Therefore, the sovereign was not only excused having to pay damages, he also was not required to explain his actions in court. Today the power to make laws is disseminated among federal, state and local governments and their officials and employees. Because governmental bodies can only act though people, some state employees and officials are clothed with sovereign immunity also. This dissemination of political power has made the law of sovereign immunity very complex.

Sovereign immunity provides protection against most suits which are based on tort law. A tort is a violation of a legal duty which results in injury. The most common example of a tort is a car crash in which one person negligently hits another person with his car, injuring the victim and damaging the victim's car. The driver of the car that was hit can sue the other driver in tort for personal injuries and property damage. It is exactly this very common type of suit, and any other suit based on a tort, which is protected against by sovereign immunity. However, sovereign immunity would not protect against an action claiming an infringement of constitutional rights or a breach of contract. Some erudite plaintiff's attorneys have occasionally been successful in avoiding sovereign immunity by disguising their tort claims as contract claims or illegal takings claims which violate constitutional rights. However, in most cases sovereign immunity cannot be so easily avoided.

The assertion that the sovereign can do not wrong has understandably been questioned by many. Some believe that sovereign immunity is bad social policy because it often places the cost of an accident upon an innocent individual who is less able to absorb the loss than a governmental body would be. There are several justifications for the continued existence of sovereign immunity, however. Sovereign immunity protects the public purse and ensures that the state is not "controlled in the use and disposition of the means required for the proper administration of the government." Without sovereign immunity there would be a "danger to the public in the form of officials being fearful and unwilling to carry out their public duties" and "public service might be threatened because citizens might be reluctant to take public jobs." In short, sovereign immunity ensures that the government's operations are not hindered by lawsuits.

State governments are immune from suit under the common law and the 11th Amendment to the United States Constitution. In certain situations plaintiff's have been able to get around these rules by suing a state official (such as the governor) who is closely aligned with the state instead of suing the state directly. This type of suit is very rare, and the only relief available is prospective injunctive relief. For example, the court might require the state official to perform or not to perform some specific act(s), but the court will never require the state official to pay money damages when the money would come from the state government itself. In light of the harsh results that such powerful immunity would cause, Virginia has elected to partially waive sovereign immunity by a statute entitled the Virginia Tort Claims Act. This Act allows plaintiff's who have been injured in tort to sue the Commonwealth of Virginia. The Act only allows plaintiff's to recover a maximum of $100,000, and other restrictions apply. The Act specifically states that it does not apply to cities, towns or counties.

Counties and school boards are political subdivisions of the state and therefore have the same sovereign immunity that the state does. Therefore, unless a state statute provides otherwise, counties and school boards enjoy immunity from tort suits. The governmental-proprietary distinction which applies to cities and towns (which will be discussed later) does not apply to counties or school boards. One significant waiver of this immunity by state statute is that school boards are not entitled to sovereign immunity for accidents involving school buses.

Political subdivisions which have been created by the state government such as the Virginia Department of Highways and Transportation, mental health institutions, health departments and state universities are always entitled to sovereign immunity. However, subdivisions of the state which are created by cities or towns such as hospital authorities, park authorities and redevelopment authorities are only immune when they perform governmental functions (which will be discussed next).

Cities and towns are immune only when they are engaged in governmental functions, as opposed to proprietary functions. A governmental function is a function which is carried out solely for the public good, while a proprietary function, while carried out partially for the public good, is also undertaken in order to be of special benefit to the municipal entity involved. The governmental-proprietary distinction is difficult to understand and sometimes results in decisions which strain reason and logic. Because of the lack of clarity of the underlying rule, there are over twenty Virginia Supreme Court cases which decide whether or not certain functions are governmental or proprietary. Finding lasting rules from all of these cases is difficult. However, almost every recent case quotes language from an early Virginia Supreme Court case. That case states that the underlying test of whether or not a function is governmental or proprietary is "whether the act is for the common good of all without the element of special corporate benefit or pecuniary benefit. If it is, there is no liability, if it is not, there may be liability." In order to understand this test one must realize that cities and towns have two primary functions. The first function is to benefit the residents of the city or town, and the second function is to benefit members of the general public who are not necessarily residents of the municipal corporation. When the municipality performs functions that primarily benefit its own residents it is performing a proprietary function and is not immune. However, when the municipality acts in order to further the interests of the public at large, the municipality is clothed with sovereign immunity because it is acting as an agent of the state. When viewed with this framework in mind, some of the cases make more sense, while others still seem somewhat arbitrary.

Two generalities can be gleaned from the numerous cases on sovereign immunity. In general, a city or town is engaged in a governmental function when it plans, designs and engineers local improvements. The rationale for this is that the streets are open for the use of all visitors to the municipality and are not primarily designed to assist town or city residents. For example, municipalities will generally be immune from a suit which claims that a public street or sidewalk was negligently constructed. A city or town would also be immune from a suit which claimed that the municipality was negligent in its placement or non-placement of traffic signals, control devices, or signs. Similarly, the municipality is also immune when engaged in the engineering, designing and planning of water, sewer and drainage systems. However, there is an exception to this general rule.

If a plaintiff can show that a municipality maintained a public nuisance then the city or town would not be immune. A plaintiff alleging that a street constituted a public nuisance must show that the condition imperils the safety of a public highway, is dangerous and hazardous in itself and that the municipality had notice of the danger. A plaintiff alleging that a municipality created a nuisance must also show either that the "condition claimed to be a nuisance was not authorized by law or the act creating or maintaining the nuisance was negligently performed."

The second generality that can be gleaned from the substantial case law is that in general municipalities are not immune from suits which allege that the municipality negligently maintained a sewer, street or other municipal property. The rationale for this rule is that while the maintenance of municipal property benefits the public at large, it primarily benefits the residents of the city or town and is therefore a proprietary function. In order to recover on a claim of negligent maintenance, however, the plaintiff must prove that the municipality had actual or constructive notice of the danger. A municipality is deemed to have constructive notice when "the defect be shown to be so notorious as to be observable by all for a sufficient time to enable the corporation to repair it." There is (of course) an exception to this general rule as well.

If the city or town can show that it was attempting to fix the damage caused by a storm or other emergency situation then it will be immune from suit, regardless of the fact that the municipality would be performing maintenance on its property. Two examples of this are the clearing of downed trees from streets following a hurricane and the removal of snow and ice after a substantial snow storm.

There are no other general rules which allow an easy determination of whether or not a municipality is engaged in a governmental or proprietary function. However, several specific municipal activities have been deemed governmental or proprietary by Virginia courts.

Several municipal activities have been deemed governmental functions. The operation of a hospital, providing health care through a clinic, providing emergency medical technicians and emergency services, and providing ambulance services are governmental functions. The operation and maintenance of a police force is a governmental function, as is fire fighting. Driving to the scene of a fire is considered a part of fighting a fire and is also an immune activity. Garbage removal is considered to be a governmental function, as it the maintenance and operation of a landfill. The operation of a jail is also a governmental function. By statute, cities and towns are only liable for gross negligence in the operation of pools, parks, playgrounds and other recreational facilities.

Other functions have been determined to be proprietary by Virginia Courts. The operation of a water supply system is a proprietary function for which the municipality would not be immune. While snow removal during an emergency is a governmental function, the routine removal of snow in a non-emergency situation (not during or immediately after a severe snowstorm) is a proprietary function. The operation of tollgates, airports and public housing authorities are all proprietary functions. The routine maintenance of streets, sidewalks and other property is also a proprietary function. (see discussion above).

With few exceptions, cities and towns are immune from suit when they are engaged in planning, designing or engineering local improvements. In general, cities and towns are not immune when they maintain municipal property. Outside of those two generalities, other municipal functions are decided to be immune or not on a case by case basis, with reference to the dual functions that municipalities perform.

Because a governmental body can only act through people, sovereign immunity is sometimes extended to protect governmental officers and employees. The theory is that governmental operations will be ham-strung if all of its officers and employees can be sued for performing their public duties. The Virginia Supreme Court has stated that there is:

very little debate regarding the extension of the doctrine to those who operate at the highest levels of the three branches of government. Governors, judges, members of state and local legislative bodies, and other high government officials have generally been accorded absolute immunity. However, general agreement breaks down the farther one moves away from the highest levels of government.

Therefore, the rest of the discussion on employee immunity concerns the vast majority of individuals who are not at the very highest levels of government. Ambulance companies, construction companies and other entities which undertake work on behalf of the state are also entitled to sovereign immunity. The same rules apply regardless of whether the defendant is a person or some sort of business or corporate entity. In this section on employee immunity, the term "employee" will refer to any person or business entity which performs work on behalf of a governmental body.

The first step in determining whether or not an employee is immune from suit is to determine if the entity for which the employee works is entitled to sovereign immunity. If the person is employed by the Commonwealth, a county, school board or other subdivision of the state this first step is very easy because those entities are always immune from suit. However, if the employee works for a city, town or a subdivision thereof then it must first be determined whether or not the employee was engaged in a governmental function when he performed the actions which gave rise to the suit. (See previous section). Once it is determined that the governmental entity for which the employee works is entitled to immunity, the next step is to determine whether or not the employee is entitled to share in that immunity.

The Virginia Supreme Court has stated that four factors must be considered in determining whether or not an employee is entitled to sovereign immunity. The factors to be considered are (1) the nature of the function performed by the employee; (2) the extent of the state's interest and involvement in the function; (3) the degree of control and direction exercised by the state over the employee; and (4) whether the acts complained of involved the use of judgment and discretion. This test is called the James test, and is quoted in almost every recent case in which the sovereign immunity of an employee is at issue.

One of the best explanations of the James test comes from a circuit court opinion. In that tragic case, the defendant was an ambulance company which contracted with the City of Richmond to provide ambulance services. The company was required to respond to all emergency calls which were made within the City of Richmond, and was paid a flat fee regardless of how many calls were responded to. A young child's parents called the ambulance company stating that their child had been bitten by a snake. Upon arrival at the scene, employees of the ambulance company refused to transport the child to the hospital because they decided that the child was bitten by an insect and not a snake. As it turned out, the child had been bitten by a snake and died as a result. The child's parents brought suit against the ambulance company, and the company sought sovereign immunity. The court discussed the four factors of the James test in detail. It must be remembered that each factor of the James test need not come out in favor of granting the employee sovereign immunity; the James test only states that those factors must be considered in making the determination.

The first factor considered was the nature and function performed by the employee. The court stated that:

if the function the government employee was performing was essential to a governmental objective this factor would weigh in favor of the employee's claim of sovereign immunity. Conversely, if that function has only marginal influence upon a governmental objective this factor would weigh against granting sovereign immunity.

Here, the function that the ambulance company was performing was essential to the governmental objective of protecting the health and welfare of the public. The extent of the state's interest and involvement in the function was considered next. The court stated that "if the government has a great interest and involvement in the function this factor would weigh in favor of the employee's claim of sovereign immunity. Conversely, if the government's interest and involvement in the function are slight, this factor weighs against granting sovereign immunity." The court found that the state had a great interest and involvement in providing emergency rescue care because Virginia code sections authorize counties to create rescue zones and to contract for such services. The court next considered the degree of control and direction that the state exercised over the ambulance company. The court found that because the ambulance company was highly controlled by the City of Richmond (the City owned the vehicles, required the ambulance company to respond to every emergency call within City limits and set medical and dispatch protocols and pre-arrival instructions) this factor also weighed in favor of granting immunity. The fourth factor considers whether the act complained of involved the use of judgment and discretion. The court found that the company's employees exercised considerable discretion because they were empowered to decide whether or not to transport patients to the hospital. The court held that the ambulance company was entitled to sovereign immunity. Although that circuit court case was not granted on appeal, the Virginia Supreme Court has recently ruled that ambulance drivers are entitled to sovereign immunity.

The apparent dichotomy between the governmental control element and the requirement that the employee exercise judgement and discretion was explained by the Virginia Supreme Court in another case. The court stated that the factors to be considered under the James test were not at odds because "when a government employee is specially trained to make discretionary decisions, the government's control must necessarily be limited in order to make maximum use of the employee's special training." The fourth factor simply seeks to ensure that employees who fail to perform straightforward ministerial tasks (such as driving a car in a non-emergency situation) are not granted immunity.

What follows is a brief synopsis of the immunity status of other governmental employees. Volunteer fire fighting companies are by statute immune from suit for damages done incident to fighting fires or providing rescue services. Fire fighters are not immune when performing non-emergency work such as shoveling snow or pulling down the walls of a building which had been damaged by a fire five days previously. The Virginia Supreme Court has ruled that the term "fighting fires" includes driving to a fire. Police officers are immune from suit when engaged in certain activities, such as when involved in a high speed car chase. The court reasoned that an essential governmental function was being performed in which the government was interested, involved and exercised control over the employee through training and policy manuals. Moreover, those acts required the exercise of judgment and discretion because during a high speed chase the officer "must make prompt, original and crucial decisions" which are discretionary. However, a police officer who was driving back to a police station in a police vehicle after having served a summons was not immune because driving in a non-emergency situation did not involve the exercise of judgement and discretion. However, a police officer was afforded immunity when he mistakenly shot a suspect. The officer was approaching suspicious suspects by car and drew his weapon as he started to exit his vehicle. However, the officer had forgotten to put his car in park. As the car rolled forward the officer jumped back into the car and pushed the vehicle back into park, during the course of which the officer's gun accidentally discharged, shooting the suspect in the neck. The court held that the policeman was engaged in an essential government function which required the exercise of judgment and discretion, and was immune from suit.

A school superintendent and a school principal were deemed immune from suit when a student brought a claim against them for failing to maintain a safe environment at the school. The plaintiff was stabbed by another student while on school property. The court held that both defendants were performing essential government functions under guidelines set down by the state and that the functions performed required the exercise of judgement and discretion. In another case, a high school teacher was deemed to be immune from suit when the teacher was charged with negligently supervising a physical education class. The teacher required the students to play tackle football without wearing protective equipment, resulting in the plaintiff's injury. The court ruled that the teacher was performing a vitally important public function in which the school board had a substantial interest and involvement, that the school board exercised control over the teacher through the principal of the school, and that the teacher's job required the exercise of judgment and discretion. A recent statute gives immunity to state employed teachers for damages resulting from the allegedly negligent "supervision, care or discipline of students" unless the teacher acts outside of his scope of employment or is grossly negligent.

State employee counselors and supervisors of a juvenile detention hall who were empowered to release inmates of the hall were found to be immune from suit. The former detainee who was released by the defendants stabbed the plaintiff within a few months of being released. The court held that the defendants' determination of when to release inmates was an important government function which required the exercise of judgment and discretion.

In a consolidated appeal of two lower court decisions, the Virginia Supreme Court held that a superintendent of buildings of a public college and a county chief of operations of public works were immune from suit. In both cases, plaintiffs were injured in trip and fall accidents which were allegedly the fault of the defendants' lack of maintenance. The court held that both defendants performed administrative duties which were important to the state and which required the exercise of judgment and discretion. Another lack of maintenance case provides an interesting illustration of how different levels of immunity are granted to different defendants. In that case, the plaintiff was injured in a courthouse when a chair in which she was sitting collapsed. The plaintiff brought suit against the county, the county administrator and a janitor. The court ruled that the county was always immune as it was a political subdivision of the state and that the county administrator was immune from all actions based on ordinary negligence as he was performing an important government function which required the exercise of judgment and discretion. The janitor, however, was not involved in any activities which required the exercise of judgment or discretion and could be held liable for negligent acts.

A V.D.O.T. engineer was given immunity against a claim of negligently designing a road. The court held that the design of a street involved the exercise of judgment and discretion and was an essential government function.

A recent statute states that "no private person...or contractor...employed to remove snow and ice from any public highway shall be afforded sovereign immunity." A court clerk who negligently indexed a deed was not immune from suit as the act of indexing a deed did not require judgment and discretion.

The immunity status of medical doctors who are governmental employees is somewhat confused, despite the fact that the case which spawned the James test concerned the immunity of state employee doctors. In James, several medical doctors who were full-time faculty members of the University of Virginia medical school were sued for medical malpractice. The court created the James test and applied it to the defendants. The court stated that because the University of Virginia is a research hospital, the care of patients is not the primary function which the doctors were employed to perform. Therefore, the doctors were not performing a function which was important to a governmental objective. Because the doctors could decide which patients they wished to see and whether or not to reduce patient bills, the court decided that the state's interest and involvement in the patient care function was not very high, and also that the degree of control and direction exercised by the state over the doctors was not substantial. Because the only factor in favor of granting the doctors immunity was the judgement and discretion factor, the court held that the doctors were not entitled to sovereign immunity. However, three later cases which applied the James test ruled that state employee doctors were entitled to sovereign immunity.

In one of the cases James was distinguished on the ground that the doctor was highly controlled by the State. The State government controlled when and where the doctor worked, the number and identity of the patients he saw, the equipment he used and the procedures he could perform. In addition, because the doctor worked at a state owned free clinic, the primary purpose of which was to care for the health of patients, the doctor was performing a function in which the state was very interested. As the defendant's practice of medicine required the exercise of judgment and discretion, the doctor was held to be immune.

In another case, a medical doctor and salaried employee of a state hospital engaged in medical research was entitled to sovereign immunity. Although the defendant was a board certified physician, the defendant was at the time performing a fellowship and was supervised by other doctors. The court distinguished James on the ground that the fellow's function was "to assist as an employee and student in the conduct of a basic medical research program." Because the program was sponsored, directed and funded by state entities the state was interested and involved in the function that the defendant performed. As the defendant was closely supervised by other state employees, the state exercised a great deal of control over the defendant. As the defendant's research activities involved the exercise of judgment and discretion, the doctor was granted immunity.

In another recent case against state employed doctors, the Virginia Supreme Court granted immunity to two doctors on the ground that the doctors were performing administrative duties and not medical duties. Although the doctor was a medical director, the doctor was not directly involved in patient care and was therefore immune from suit.

In the most recent Virginia Supreme Court case on the sovereign immunity of a medical doctor, the court found that the doctor was not entitled to immunity. Because the doctor was listed as an attending physician and had not given any medical care to the plaintiff, the doctor argued that he was performing administrative functions. The court did not agree, finding that the defendant was the person who was ultimately responsible for the plaintiff's medical care. Although the court cited the James test, it did not address each of the four factors, instead basing its ruling on the following:

Because we find that Dr. Bourgeois' function as an attending physician in this case was related to patient care and that acts taken regarding patient care are within the professional medical judgment of the physician, we conclude that the state's interest and degree of involvement are slight.

This language indicates a possible lessening of the number of state doctors who might be entitled to sovereign immunity.

It is apparent that there are no bright lines when it comes to physician immunity in Virginia. From these cases it appears that the more independent and senior that a doctor is the more likely it will be that he or she will not be entitled to sovereign immunity. Even if an employee passes the James test the employee may still be liable if the employee was not acting within the scope of his employment at the time of the incident. An employee who is not acting within the scope of his or her employment is no longer acting on behalf of an immune entity and is therefore not entitled to share in the immunity of his employer. An employee is deemed to be acting outside of his scope of employment when the employee has either committed an intentional tort or acted in a grossly negligent manner. Gross negligence is defined as "the absence of slight diligence, or the want of even scant care." This is a very high standard, so high that in only one of the employee immunity cases cited here was the defendant found to have been grossly negligent.

An employee seeking to raise the defense of sovereign immunity must make a plea in bar, and that plea must be accompanied by some evidence. The Virginia Supreme Court has recently ruled that when a complaint alleges intentional tortious acts or gross negligence, the defendant may only be granted a plea in bar on sovereign immunity grounds if the defendant comes forward with evidence refuting the allegations of intentional tortious conduct or gross negligence.

The immunity statues of governmental employees is often difficult to determine. However, it must be remembered that these complex rules only apply to middle level governmental employees. In general, employees who operate at the very highest levels of the three branches of government are immune, while those who operate at the lowest levels are not.