Colby v. BoydenColby v. Boyden
- Reporters:
- Before:
- Lacy
LACY, Justice.
In this case we determine the degree of negligence required to impose civil liability for injuries resulting from the actions of a police officer who violates traffic laws while pursuing a fleeing lawbreaker.
On January 6, 1987, Patricia E. Colby was driving her vehicle east on Pembroke Avenue in the City of Virginia Beach. As she approached the intersection of Independence Boulevard, the light controlling her lane turned green. She slowed, looked to the left and right, and, seeing or hearing nothing, proceeded into the intersection. In the middle of the intersection, her car was struck on the left side by a Virginia Beach Police Department vehicle operated by Officer William H. Boyden. As a result of the collision, Colby received serious and permanent injuries.
Shortly before the accident, Officer Boyden had observed a vehicle traveling south on Independence Boulevard run a red light at the intersection of Independence and Witchduck Road. He began to pursue the offender and activated his emergency blue lights. He saw the vehicle move from lane to lane at a high rate of speed and subsequently run the red light at the intersection
Colby filed a motion for judgment against Boyden and the City of Virginia Beach seeking damages for the injuries sustained in the accident. After non-suiting the City, Colby, in an amended motion, alleged one count of negligence and one count of gross negligence against Boyden. Boyden filed a special plea asserting the defense of sovereign immunity to the simple negligence count. Upon stipulated facts, the trial court sustained Boyden‘s plea and granted his motion for summary judgment, holding that, as a matter of law, Colby had failed to make out a prima facie case of gross negligence.
On appeal Colby raises three issues: (1) whether Officer Boyden was entitled to assert the defense of sovereign immunity; (2) whether Colby was required to prove gross negligence in order to recover; and (3) whether, as a matter of law, Colby failed to establish a prima facie case of gross negligence. We will consider the issues in order.
Sovereign Immunity
Colby asserts that Boyden‘s actions involved in the pursuit of a speeding automobile were not entitled to the protection of sovereign immunity because they were ministerial acts and not acts which involved judgment and discretion. In support of this position Colby relies primarily on Biscoe v. Arlington County, 738 F.2d 1352 (D.C.Cir.1984), cert. denied, 469 U.S. 1159, 105 S.Ct. 909, 83 L.Ed.2d 923 (1985), where the actions of an Arlington County police officer pursuing a fleeing suspect at high rates of speed into the District of Columbia were held to constitute ministerial acts.
The court in that case, however, was applying and construing the law of the District of Columbia, not the law of Virginia. The District‘s law, as explained by that court, provides complete immunity to agents of the government for tortious acts occurring in the performance of discretionary functions, but, if the act is one involving the “`execution of policy as distinct from its formulation,‘” it is ministerial, and the defense of immunity is unavailable. Id. at 1362 (citation omitted). Describing the officers’ actions as the execution of the decision to pursue the fleeing automobile, the court concluded that the officers’ actions were ministerial and, therefore, not entitled to sovereign immunity. Id. at 1363.
The court‘s holding in Biscoe is not persuasive when considering the doctrine of sovereign immunity as applied in Virginia. The doctrine‘s availability and the protection it affords individuals to whom it applies differs substantially in the two jurisdictions. In Virginia, a government agent entitled to the protection of sovereign immunity is not immunized from suit. Rather, the degree of negligence which must be shown to impose liability is elevated from simple to gross negligence. See James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864, 869 (1980); Sayers v. Bullar, 180 Va. 222, 229, 22 S.E.2d 9, 12 (1942).
In Virginia, as in the District, the question of whether a particular act is entitled to the protection of sovereign immunity depends upon whether the act under consideration is classified as discretionary or ministerial in nature. Our resolution of that question, however, goes beyond determining whether the act constitutes the formulation or execution of policy.
The Virginia rule, which was applied by the trial court, is not that of Biscoe, but rather it is the four-factor test enunciated in James, supra, and reiterated in Messina v. Burden, 228 Va. 301, 321 S.E.2d 657 (1984), Lentz v. Morris, 236 Va. 78, 372 S.E.2d 608 (1988), and Gargiulo v. Ohar, 239 Va. 209, 387 S.E.2d 787 (1990). The four factors are: (1) the nature of the function the employee performs; (2) the extent of the government‘s interest and involvement in the function; (3) the degree
This is the first instance in which we have had occasion to apply this analysis to the actions of a police officer engaged in vehicular pursuit.1 Enforcement of traffic laws is not only a primary governmental function of a municipality, but one in which the municipality is inextricably involved through financial, personnel, and policy initiatives. A municipality enjoys sovereign immunity for acts undertaken in furtherance of this function. Boyden was involved in the performance of this function for the City of Virginia Beach at the time of the accident, thereby satisfying the first two elements of the test.
The City exercised administrative control and supervision over Officer Boyden‘s activities through the promulgation of guidelines governing actions taken in response to emergency situations. However, those guidelines do not, and cannot, eliminate the requirement that a police officer, engaged in the delicate, dangerous, and potentially deadly job of vehicular pursuit, must make prompt, original, and crucial decisions in a highly stressful situation. Unlike the driver in routine traffic, the officer must make difficult judgments about the best means of effectuating the governmental purpose by embracing special risks in an emergency situation. Such situations involve necessarily discretionary, split-second decisions balancing grave personal risks, public safety concerns, and the need to achieve the governmental objective. The exercise of discretion is involved even in the initial decision to undertake the pursuit, as the Biscoe court recognized. See Biscoe, 738 F.2d at 1363.
While each case must be evaluated on its own facts, to hold that Officer Boyden‘s acts here were merely ministerial, thereby denying him the protection of the sovereign immunity defense for the actions complained of in this case, not only ignores the realities of the circumstances under which he performed his job, but also would inhibit law enforcement officers faced with similar decisions regarding vehicular pursuit in the future. Applying the four-part test of James, we concur with the trial court that the defense of sovereign immunity was applicable to Officer Boyden‘s actions in this case.
Breach of Duty—Degree of Negligence
Under Virginia law, where, as here, a defendant‘s actions are clothed with sovereign immunity, a plaintiff must establish gross negligence in order to prevail. James, 221 Va. at 53, 282 S.E.2d at 869; Sayers, 180 Va. at 229, 22 S.E.2d at 12. However, relying primarily on the language of
Nothing in this section shall be construed to release the operator of any such vehicle from civil liability for failure to use reasonable care in such operation.
In support of her position, Colby cites four Virginia cases, Pullen & McCoy v. Nickens, 226 Va. 342, 310 S.E.2d 452 (1983); Smith v. Lamar, 212 Va. 820, 188 S.E.2d 72 (1972); White v. Doe, 207 Va. 276, 148 S.E.2d 797 (1966); and Virginia Transit Co. v. Tidd, 194 Va. 418, 73 S.E.2d 405 (1952). However, none of these cases held that proof of simple negligence was sufficient to impose civil liability for acts covered under
Virginia Transit and White each involved a determination of whether a predecessor to
In Pullen & McCoy, we rejected the argument that the omission of the above quoted sentence from
In Smith, where the exemption statute was applicable, we construed an officer‘s duty under the statute as that, not of an “ordinary person” or “ordinary motorist,” but that of an officer performing his duty under like circumstances. That duty was identified as the proper standard for determining whether negligence existed. 212 Va. at 824, 188 S.E.2d at 74-75. We did not categorize such negligence as ordinary or gross, and the case did not involve the imposition of civil liability, but rather, as in White, an officer‘s ability to recover damages for injuries he sustained during a vehicular pursuit.
Defining the defendant‘s duty of care is the first step in determining liability. A second step involves determining whether the conduct alleged, here on stipulated facts, amounts to the degree of deviation from that duty—simple or gross negligence, willful and wanton conduct, or intentional misconduct—requisite to establish civil liability in the circumstances of the case.
Adopting Colby‘s position would create the anomalous result of requiring a showing of simple negligence in order to impose civil liability on a policeman who complies with
While one responding to an emergency situation is not excused from civil tort liability,
Furthermore, legislative abrogation of the common law doctrine of sovereign immunity must be explicit and will not be found by implication. See Hyman v. Glover, 232 Va. 140, 143, 348 S.E.2d 269, 271 (1986). Nothing in
Gross Negligence
The trial court held that, based on the stipulated facts, Officer Boyden “did exercise some degree of diligence and due care” and, therefore, as a matter of law, his acts could not show “utter disregard of prudence amounting to complete neglect of the safety of another.” Officer Boyden activated his lights and, for at least part of the time, his siren. His speed was no more than five miles over the speed limit, and he swerved and braked in an attempt to avoid the collision.
On this record, we cannot say that the trial court erred in finding that Officer Boyden exercised “some degree” of care for the safety of others. As gross negligence is the “absence of slight diligence, or the want of even scant care,” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691 (1987), the trial court properly held that Colby failed to establish a prima facie case of gross negligence.
Accordingly, the judgment of the trial court will be
Affirmed.
COMPTON, J., files dissenting opinion in which STEPHENSON and HASSELL, JJ., join.
COMPTON, Justice with whom STEPHENSON and HASSELL, Justices, join, dissenting.
I disagree that this city police officer was relieved of the duty to exercise reasonable care in the operation of the police vehicle.
At the time of this accident,
Consequently, under the General Assembly‘s mandate, the officer in this case, operating a city police vehicle, was permitted to proceed through this intersection but he was not relieved from civil liability for failure to exercise reasonable care in such operation.
Refusing to follow the legislative imperatives, the majority has decided that the officer is liable only for gross negligence because of the doctrine of sovereign immunity. I believe that the General Assembly has already spoken on this subject and that the majority opinion amounts to pure judicial legislation.