*1 Richmond Frank Messina
v. William W. Burden
Record No. 811485. Armstrong Leonard
v. Dennis R. Johnson
Record No. 820299.
October 1984. Present: Carrico, C.J., Cochran, Poff, Thomas, JJ., Compton, Stephenson, Retired Harrison, Justice. *3 Cardón, Weintraub,
H. Joel Weintraub Thomas & (Decker, 811485) on for No. Hitchings, brief), (Record appellant. Hubbard, J. J. III & on O’Keefe, Gray, (Outland, O’Keefe brief), for (Record 811485) No. appellee. Howard, P.C., Blair D. Howard on for brief), & (Howard ap- (Record No. pellant. 820299) Flinn,
Charles G. for No. County Attorney, (Record appellee. 820299)
THOMAS, J., delivered the of the Court. opinion These two the same issue from different appeals present slightly *4 Both whether the doctrine of sover- perspectives. concern appeals such as those in- eign extends to employees Burden, the vоlved in these cases. differ in that William W. They Com- in the first was an of Tidewater appellee employee appeal, munity College, Virginia College System, of the part Community thus, essence, State, R. an while Dennis Johnson, in the second was an employee appellee appeal, reex- These us the Arlington County. give opportunity appeals amine as it has evolved sovereign law of complex the Commonwealth.
I. Background A. Messina In the first Frank Messina was when he appeal, injured tripped and fell on a located behind the stairway stage College The- ater on the Frederick of Tidewater Campus Community College. At the time of his Messina was an in a injury being actor play at the performed theater. However,
Messina first sued the that action community college. was nonsuited and an amended motion for filed judgment was against Burden, William W. the college’s superintendent buildings.
In the amended motion for judgment, Messina made several al- legations against Burden including following: 11, 1979,
On or Defendant, about March William W. Burden, was the Superintendent Buildings for the Defen- dant Tidewater was its Community College, employee, within acting of his and as the scope employmеnt; Superintendent of it was his Buildings to maintain and duty supervise maintenance of the of the Tidewater buildings Community College. . . .
Burden filed a demurrer in which he contended that the action against him was barred doctrine of sovereign immunity. The court sustained the demurrer with leave to Messina to amend.
Messina filed second amended motion for judgment. This time Messina was Moreover, careful not to set forth Burden’s title. job in his new pleading, Messina did not allege that Burden was act- ing within the scope his or that he had employment supervisory responsibilities. response, Burden filed a im- plea The court munity. sustained the plea.
On Messina appeal, contends that the trial court erred two particulars: first by sustaining the demurrer to the first amended motion for second judgment, by sustaining to the second plea amended motion for judgment.
B. Armstrong Leonard Armstrong was when he injured on a defective stepped manhole cover located in a in Arlington street County. Armstrong and, sued Dennis R. in his motion for judgment, alleged Johnson *5 the Depart- “Chief Division of Operations that Johnson was of the Virginia.” Johnson Arlington County, ment of Public Works in Thereafter, filed a a demurrer. special plea which they agreed into a of facts in entеred parties stipulation of the at time of Johnson Chief Armstrong’s injury, that that there agreed Division as further alleged. They Operations were and that he admin- eleven sections within Johnson’s division istered all of them. that Johnson’s work They agreed required also high- skills to solve application engineering knowledge further They construction and way problems. agreed maintenance judg- in exercising independent that Johnson had “wide latitude ment, the Director subject to administrative review only Department Transportation.” of immu- plea court sustained the demurrer and trial In a court first stated
nity. memоrandum trial opinion, of the Common- Arlington sovereign immunity shared the County wealth, a then reasoned that the “is not ‘local county as of the decisions de- that term has been used several agency’ court of such The trial agencies.” nying immunity employees ‘executive also stated that Johnson’s duties were “analogous officers’ Lawhorne v. Harlan Va. 200 S.E.2d [214 were with the vast (1973)] hospital who charged operation John- charge against The court noted further that the complex.” son was or inten- negligence, gross negligence one of not simple tional misconduct.
On trial court made two appeal, Armstrong contends that the “while holding errors. He the court erred in that Johnson says em- as ... . . . was not as an acting acting Chief Operations trial court says local He also government agency.” ployee erred in Johnson’s demurrer and sustaining plea.
II. Discussion A. Issues to Both Appeals Common One run both through At two common themes appeals. least so has been theme is the doctrine of sovereign with away lost and should be done vitality eroded that it has its difficulty this other theme concerns the Court. The completely by are entitled which determining government employees 1. the Doctrine Vitality the doctrine Contrary suggestions appellants, *6 of sovereign is in immunity Though “alive well” this Virginia. has, Court over the in a years, discussed the doctrine of variety contexts and refined it for to constantly shifting facts application and circumstances, we have never seen fit to abolish it. Nor does 1981, the General Assembly want the doctrine abolished. In the General enacted the Tort Had Assembly Virginia Claims Act. it chosen, so the legislature could have used that act as a vehicle abolish sovereign It did the In 1982 immunity. just contrary. a amendment to the Act the General Assembly as follows: provided shall of this so any provision article ... be construed
[N]or as to remove or any diminish the way sovereign immunity of or any county, city, town in the Commonwealth.
Code Thus, 8.01-195.3 (emphasis added). complexity § exists in the law of sovereign cannot be immunity eliminated by of simple expedient doing with the doctrine away judicial fiat.
2. Determining Employee Immunity The more raised important question two is under appeals what an circumstances of governmental is enti- body tled to the of protection sovereign In order to resolve this question, we must upon focus what doctrine of sovereign was meant to immunity achieve.
One
the most often
for the rule
repeated explanations
of state
from
suits
tort is the
necessity
protect
public
234,
See
purse.
Hinchey v.
in the use and disposition 462 (quoting 76 Va. at of the government.” administration Siren, (1868)). (7 Wall.) 74 U.S. the idea that rejected protection we Hinchey,
More recently, of the doctrine. the sole basis is or ever was of the public purse is There, funds public impor- while maintenance we said that rule is the tant, orderly equally important purpose another 72 Am. we relied Hinchey, upon government. administration of Territoriеs, States, which de- and Dependencies Jur. 2d § which of social policy, pro- “as a rule sovereign immunity scribed with the perform- interference tects the state from burdensome over its control and preserves ance of its functions governmental 240, 307 funds, 226 Va. at and instrumentalities.” state property, S.E.2d at 894. doctrine of that the
From these several sources it is apparent
but
including
serves a multitude of
purposes
smooth
for
providing
not limited to
the public purse,
protecting
*7
inconvenience and
government, eliminating public
of
operation
act,
fearful to
assur-
being
from officials
danger
might
that
spring
and
jobs,
preventing
be
to take
ing
willing
public
that citizens will
of governmental
the conduct
influencing
citizens from improperly
Given the
litigation.
use of vexatious
through
affairs
the threat or
doctrine,
in order to fulfil!
it follows that
several
of the
purposes
doctrine cannot be
afforded
the
by
those
the
purposes
protection
the doc-
the
of
protection
limited
the
Unless
solely
sovereign.
to
who
run the government,
trine extends to some of the
help
people
will
unad-
for the
remain
the
doctrine
majority
purposes
State itself does
to the
limiting
dressed. For example,
protection
If every gov-
will act without fear.
to insure that officials
nothing
suit,
become as
the State could
ernment
is
subject
direct suit. The
subject
if it were
in its
as
hamstrung
operations
individuals.
through
is
the State can act only
reason for this
plain:
222,
Bullar,
(1942).
Va.
309
Bullar,
229,
same
v.
180
In Sayre v. The Northwestern 37 Turnpike (10 Va. Leigh) (1839), we held and directors president Northwestern to be Turnpike against Road immune claim built bridge their constructed. company negligently Bullar, v. Sayers we (1942), S.E.2d held that workers who im- performed blasting for the State were operations mune from liability because there was no evidence that in blasting did other they anything than what were exactly they required do by the We sovereign. stated that the “defendants were simply out carrying instructions given by” them a state Id. at agency. 230, 22 S.E.2d 12. at We “were Sayers said the workers acting solely their as representative lawful capacity proper agents of the State and not their own individual Id. at right.” *8 229, Board, 252, 22 S.E.2d 12. In at Kellam v. School 202 Va. 117 S.E.2d (1960), 96 we held city that a school board was im- mune when with charged negligenсe in to the failing keep aisles clear in a high school auditorium been third that had rented to a 53, for a party Griffitts, Accord Short v. 220 Va. 255 program. Albrite, S.E.2d 479 (1979); Crabbe v. School Board and Va. 209 356, 164 S.E.2d (1968). 639 Harlan, 405,
In Lawhorne v. 214 Va. 200 (1973), S.E.2d 569 we held that surgical two administrators and a intern at hospital the of a University Virginia hospital brought were immune in suit the by representative of a who died while in the patient hospital.
310
168,
we held
Sellers,
(1982),
224 Va.
294 S.E.2d
In Banks v.
school
high
principal
and a
superintendent
that
division school
a safe
provide
in a
their failure
alleging
were immune
suit
that
v.
In Bowers
being stabbed.
environment resulted in plaintiffs
Commonweаlth,
we held
(1983),
S.E.2d 511
from a
was immune
engineer
resident
highway department
that
was con-
on a culvert that
injury
suit where
sustained an
plaintiff
held that
Most
we
department.
recently
structed
the
by
highway
Beach
Norfolk-Virginia
the
Expressway
Superintendent
barriers
when
for
failing
provide adequate
was immune
sued
v.
Hinchey Ogden,
and traffic control which led
a collision.
Va.
(1983).
Deciding government employees Yet, doc- given vitality the continued requires line-drawing. Yet, trine, by keeping the Court must in this difficult task. engage by in our firmly analysis, the that underlie the rule fixed policies decisions, and exam- from our distilling general principles рrior be this task can ining the facts and circumstances of each case simplified. and Armstrong
B. Messina Analysis of very not involve officials at the and do Armstrong Messina accorded generally of who have been highest levels Thus, of immunity absolute to decide the question of facts and these we make a close examination must appeals, circumstances.
1. Messina Messina, the de sustaining court did not err in the trial for In that judgment. plead murrer to the first amended motion alleged Messina ing, Messina himself out court. pleaded that Bur System, college Community College was part was “Superin dеn that Burden college, employed by had the maintain “duty tendent of that Burden Buildings,” the college, at buildings” the maintenance supervise It his “was within the acting scope employment.” that Burden Burden for is clear from the first amended motion judgment was oper State who Virginia was a supervisory or to do doing failing oí-his ating employment within scope Messina; he such as the act of simple negligence complained
311 Commonwealth, was entitled Bowers v. 225 See Va. immunity. 245, Sellers, 168, 302 511 Va. (1983); S.E.2d Banks v. 224 294 Harlan, 405, (1982); S.E.2d 862 Lawhorne v. 214 Va. 200 S.E.2d (1973). 569 error,
In of his second Messina re support assignment 53, lies Short v. 220 Va. 255 S.E.2d heavily Griffitts, 479 upon Messina in (1979). contends that the his case were vir allegations the same as in Court that the tually Short where this ruled doc However, trine of did sovereign not bar the claim. Short immunity distinguishable. is The in telling most difference is that the instant alleged Messina Burden appeal acting that within the scope his with to the act of.* No employment regard such complained allegation was made in One of Short. the critical factors in decid ing whether a is entitled employee is whether he was or acting within without his at the authority time of doing failing or to do the act of. Messina In this complained critical must be point resolved favor Burden. fact ishe said to have been plaintiff operating within scope of his with employment together allegation of the supervisory nature of work his and the absence of any gross claim of negli gence or intentional misconduct demonstrates the correctness of the trial decision court’s to sustain the of sovereign plea
2. Armstrong error, of his first support assignment Armstrong ar gues that Johnson was a rather than an em county employee found, hence, ployee Commonwealth as the court trial that he was not eligible to claim sovereign immunity. He relies Jane, 43, 51, upon passing comment in James v. 221 Va. S.E.2d 112 (1980), where we said that make a distinc “[w]e tion between the Sovereign Commonwealth and its Virginia employees, governmental and local agencies and their employees.”
Armstrong construes that language comment similar 53, 55, Short v. Griffitts, (1979), 255 S.E.2d as * concerning The facts primarily nature of Burden’s work were contained in the first judgment amended motion for which trial court sustained a demurrer with leave to Though plea amend. judgment, followed the second amended motion for it is obvious upon judgment from the trial final court’s order it relied both motions for determin- ing objectiоn interposed procedure. Burden’s status. Messina no to this in his Indeed brief Thus, pleadings. considering refers allegations he to both the trial court did not err in judgment. contained in the amended first motion for se doctrine of of a rule that the pronouncement per governmental never to an of a local applies *10 distinction we men- We disavow such a construction. The
agency. tioned in and Short is one of rather than kind. A degree James And iden- sovereign. state has a closer nexus to the employee of in deter- tity is one of the factors to be considered employer whether a is entitled to the mining government employee protec- tion of the Where an works for the immunity employee doctrine. itself, immune, we can sovereign an we know to be elimi- entity nate the in which would us to otherwise step analysis require ascertain whether the who asserts works for employee an governmental immune As must be obvious from the de- entity. cision in v. (handed reached Banks Sellers down after the trial in ruling court’s where we held a school Armstrong), superinten- immune, dent and a of entities principal governmental employees other than the benefits of Commonwealth itself can receive the sovereign immunity.
Given our of this it was to analysis appeal, unnecessary attempt to turn in him Johnson into a order for to be quasi-state employee entitled to the sovereign of It would an protection immunity. place English language strain on the and on the creative unnecessary of an of genius transformation of a attorneys require employee local immune into to entitle him to a state order body The more workable rule is the one here announced: If then, in an individual works for an immune a governmental entity case, af- eligible that individual will be for the proper protection forded thе doctrine. by error, contends Armstrong
In his second assignment secure, case, that even if Johnson is a who can person proper the benefits of should be with immunity, held in the instant case because Johnson fails to meet the test set doctors at the against forth James v. Jane. James involved suits trial, alleged School. At University Virginia plaintiff Medical that he was as the result of acts on the injured negligent part were the doctors in All of the doctors performing myelogram. full-time Medical University Virginia members faculty research, teach, to take School. were to do and They required all liсensed They care of were all patients. They fully physicians. were trial court held that they pleaded sovereign immunity. view, were essentially We reversed. In our the doctors immune. with their pa- far their relationship contractors as as independent tients was concerned. We that since matters treat- concluded ment left had control individually, were to them the State no up therefore, and, over im- the State’s doctor-patient relationship no munity regard had the doctors with to claims application medical negligent treatment. to im- James we a test determinе entitlement developed Among the factors to considered are the
munity. following: be 1. the nature of the function performed employee; 2. the extent of the state’s interest and involvement in
function; 3. degree of control and direction exercised the state
over the employee; 4. whether the act of involved the use of complained judg-
ment
discretion.
*11
Consequently, James аpplying the first is whether question Johnson works for an immune body. Since Johnson works for and Arlington since counties County share Commonwealth, the tort immunity Mann v. County Board, S.E.2d (1957), then Johnson is eligi ble for if immunity other are applicable criteria met. When the James test is modified to insert the word “county” in the of place “state,” the word it is apparent that Johnson must be afforded His activities involved clearly judgment and discretion. The exercised county administrative control over and Johnson his a clear in work county per- The had interest
department. by formed Johnson.
III. Conclusion reasons, error in we hold that there was no foregoing For all the Therefore, in both judgments judgments from. appealed will be affirmed. appeals
Affirmed. POFF, J., concurring. result, join majority
I concur in the I have decided and in the to uniformity in the that it will contribute opinion hope law in this Common- sovereign application add, however, I I a somewhat different wealth. must have view of the law to be. ought what law mainly
The finds the case results complexity majority between the doctrine from confusion the differences historical over immu- public-servant and the doctrine sovereign The (sometimes immunity”). labeled “official nity imprecisely stems, believe, truism reliance upon confusiоn I from undue its through acts of government employees. can act only effect. are but concept The two doctrines akin different tenu- in the originálly rooted immunity, doctrine its no finds wrong, could do England ous that the theory King right protect most in the legitimate justification assets, large, at pro- its in common people owned assuring orderly the body mote the welfare and safety politic *12 of functions. governmental administration hand, of pub- of the doctrine On the the purpose other primary doc- the underlying related those immunity, lic-servant while citizens, including encourage is to trine of immunity, and, em- means, once service government those of modest to enter without missions assigned responsibly out their carry ployed, acts from resulting accidental liability injuries fear of for personal discretionary pow- their in the exercise of or omissions committed the because merely does not attach ers. Public-servant sover- works enjoys for which the employee level of government eign immunity. distinctions, suggest
The rules I would with certain in- dispense cases, illogical. voked in earlier which I consider artificial and For valid I see no reason purposes analysis, sovereign-immunity between a a both laws distinguish city; and administer county and affect of programs which the interests in the people’s integrity the and public body the welfare As purse safety politic. and reveal, an examination of the case law will it is all impossible, but with any degree to determine the difference be- consistency, function, tween a governmental function and I proprietary would abandon requirement that courts make attempt. And, while I would grant no from intentional torts any at level of I any government, would abolish the neb- ulous distinction we have negligence drawn between civil simple and gross negligence. civil
Having mind doctrines of purposes public-policy sovereign immunity and public-servant I favor the fol- immunity, lowing rules:
(1) waiver, Commonwealth, Absent express counties of Commonwealth, cities chartered the Common-
wealth, and towns the Commonwealth incorporated by are immune from suit out of arising a tort committed in the discharge of a lawful function. public (2) Departments, agencies, and other bodies created public government level any authorized to exercise a
lawful of that power government same enjoy (3) Chief executive legislators officers and level every at officers,
government, and judicial such as judges, magis- trates, and commissioners immune are chancery, from for liability damages arising out of unintentional torts committed within the of their scope employment. (4) All other level of or employees every of a
lawful of government creature are immune from liabil- from ity damages out of arising unintentional torts committed performance or dis- judgmental cretionary within the duty scope their employment, regard without to whether the misfeasance or nonfea- sance is or simple gross.
316 rules, majority opinion, like those
These precipitated grow to Government continues not be the ideal solution. may citi- tortious injury private and the danger size and power, the legis- Some say expands apace. zens by government employees immu- doctrine judge-made should abolish the lature for government employee to every absolute grant immunity nity, his em- course of during of and arising kind of tort out every and, superior, impose respondeat the rule of ployment, applying ser- conduct of the for the tortious the master liability solely upon vant, the servant. against with no right indemnity Doubtless, a legislative package so far. such go
I wоuld not of legitimate for the benefit would law body simplify employee’s tend to curtail an But it would inevitably claimants. and vex- invite frivolous faithfully, his duties incentive perform govern- administration orderly atious litigation, disrupt functions, of the people. all at the expense mental COCHRAN, J., dissenting. sover- down a rule of attempted lay has majority opinion view, In decisions. my which reconciles our
eign prior be reconciled. The the decisions cannot fails because attempt is now to be stretched of sovereign immunity result is that the tent than ever individuals negligent far more liability from protect whether the em- the critical test is What to be before.1 appears without within or acting of an immune ployee employer in my of the majority opinion, The effect of his scope employment. on this view, recent decisions least three of our is to overrule at subject. Board, (1960) 96 117 S.E.2d
In
v. School
Kellam
Albrite,
Va.
164
Board and
v. School
and Crabbe
board, in the perform-
a school
we held that
(1968),
S.E.2d 639
and, in the
duties,
of the Commonwealth
of its
was an arm
ance
statute,
negli-
for
liability
immune from
absence of waiver
for a
rule
Crabbe, however,
down a different
we laid
gence.
and perform-
school board
county
aby
teacher who was employed
using
injured
in his class was
when a pupil
his duties
ing
teacher was “perform-
fact that the
held that the
saw. We
power
sovereign im
to retain
Assembly
an intent
agree
has demonstrated
I
that the General
beyond
legislative
be extended
any
intent that such
munity
perceive
but I fail to
any limits heretofore established.
ing governmental function for
did
him
his
not
employer”
exempt
from
own
liability “for his
in the
of such
negligence
performance
*14
359,
duties.”
Twice we have
and
followed Crabbe
held that
of ex-
employees
empt
liable for their own acts of
employers were
negligence.
Jane,
43,
James v.
221 Va.
The
majority
James
opinion
repeated
language
the
of Short
thаt in our decisions
make a distinction between
Sover-
the
“[w]e
eign Commonwealth of
its
Virginia
govern-
and
and a
employees,
Commonwealth,
mental agency,
created
and its employ-
ees.” I do not consider that the
language
use
or
casual
inadvertent.
Sellers,
v.
Banks
school’s division superintendent and
were held
be im-
principal
mune because of the
and
nature of their
supervisory
discretionary
172-73,
But,
work. Id. at
In the finds present majority each defendant be a supervisory employee exercising discretion in his work.2 This puts the court in the of endorsing the on position distinction relied majority contends that the trial court determined the nature of Burden’s work allegations from judgment, previ оf the first amended motion for to which a demurrer ously object had procedure, been sustained. Because not Messina did to this court finds proper. the action to be clear mandate of Banks and contravening
Lawhorne and Short, To Crabbe, I dissent. immunize Accordingly, and James. of the state is to agencies of local arms or employees Short, we held regress from established of law. In principles maintenance, duties included employees’ supervision, whether such duties and and whether breached they facilities inspection were causing injuries questions thereby prоximately plaintiffs at S.E.2d at 480. Simi- fact to be decided at trial. 220 Va. be try ques- should entitled Armstrong Messina larly, inspect Johnson had duties tions whether Burden and their whether they maintain the under premises supervision, duties, proximately such and whether their breach breached to their injuries plaintiffs. caused respective STEPHENSON, J., in this dissent. joins *15 judgment motion for express order that the first amended is no indication in the There object majority’s to a reliance Messina’s failure on formed the basis decision. unjustified. appears be Further- procedure apparent the order to me to not on the face of more, noting object entry of the order. did it is worth counsel