2012 WL 9735223
Portsmouth Cir. Ct.2012Background
- Matthews is a sworn police officer for the City of Chesapeake and is subject to department policies.
- He was employed off-duty by Virginia Extreme Force, Inc. to direct traffic at its George Washington Highway location.
- The accident occurred as the plaintiff left Extreme Force under Matthews' direction, allegedly causing a collision with Lewis; plaintiff alleges simple negligence against Matthews and Lewis.
- At the time of the accident Matthews wore a full police uniform and equipment, as if on duty.
- Chesapeake Policy 1.2.8 governs off-duty employment, requiring approval, supervision, and conformity to police duties, including uniformed appearance and potential termination for policy violations.
- The court grants sovereign immunity to Matthews, dismissing the complaint as to him, after applying the Colby four-part test and related authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does directing traffic fall within a governmental function for immunity purposes? | Matthews performs public traffic control; immunity should apply. | Off-duty private employment undermines governmental function; immunity may not apply. | Yes; directing traffic is a governmental function for immunity. |
| Did Matthews exercise discretion and judgment in directing traffic? | Matthews exercised discretion in regulating flow and safety. | As off-duty, discretionary limits apply; immunity may be unavailable. | Yes; Matthews used discretion in directing traffic, supporting immunity. |
| Does Chesapeake Policy 1.2.8 show sufficient government control to sustain immunity? | Policy shows extensive supervision and control over off-duty work. | Policy merely regulates off-duty employment; immunity may still apply or not. | Policy demonstrates governmental control favoring immunity. |
| Is Matthews an independent contractor or an employee for sovereign immunity purposes? | Extreme Force may render Matthews independent contractor; immunity may be unavailable. | Matthews remains a police officer subject to department rules; not an independent contractor. | Matthews is not an independent contractor; immunity applies. |
Key Cases Cited
- Colby v. Boyden, 241 Va. 125 (1991) (four-part test for immunity: function, government interest, direction, discretion)
- Glenmar Cinestate v. Farrel, 223 Va. 728 (1982) (traffic regulation is a public duty even off-duty)
- Stanfield v. Peregoy, 245 Va. 229 (1993) (discretion and judgment in government action—when it applies)
- Ogunde v. Prison Health Services, 274 Va. 55 (2007) (independent contractor status in sovereign immunity context)
- Ligon v. County of Goochland, 279 Va. 312 (2010) (statutory waiver of immunity requires express language)
- Afzall v. Commonwealth, 273 Va. 226 (2007) (sovereign immunity policy considerations and purposes)