Truelove v. CommonwealthTruelove v. Commonwealth
The following is the Court’s decision regarding Defendant’s plea of sovereign immunity in the case of Truelove v. Commonwealth, Case No. CL11-1048.
I. Summary of Facts
On January 17, 2010, during an overnight stay at Chippokes Plantation State Park, eleven-year-old James Truelove fell off the top bunk of a bunk bed that was not secured with a guardrail. On May 3, 2010, he sent notice of his intention to assert a claim under the Virginia Torts Claim Act, § 8.01-195.1 et seq., via certified mail to the Division of Risk Management. The letter of notice included the specific time and place of injury, but did not allege that any specific agency was responsible; it only claimed the Commonwealth was liable as the defendant. On August 18, 2011, Truelove filed his complaint against the Commonwealth, which timely asserted its defenses of defective notice and sovereign immunity. In response, Truelove argued that his notice was appropriate and that the Commonwealth was not immune, but he did not amend his notice or complaint. On March 7,2012, the Court heard oral arguments regarding both issues, took the matter under advisement, and today announces its decision.
A. Notice
Plaintiff’s letter of notice fails to comply with Virginia law. Under the common law, Virginia as a sovereign entity is immune from all lawsuits, but sets that immunity aside for plaintiffs who follow the requirements of the Virginia Tort Claims Act (“VTCA”). Va. Code Ann. § 8.01-195.6. Because it is in derogation of the common law, however, the VTCA must be construed strictly. Melanson v. Commonwealth,
The task of determining which agency is liable is usually easy; for example, an online search for Chippokes Plantation State Park leads immediately to the Department of Conservation and Recreation’s website. Hence, most cases alleging defective notice focus on the requirement of showing the time and place of injury. See Halberstam v. Commonwealth,
In the present case, the Department of Conservation and Recreation (“DCR”) administers all the state parks, just as the Department of Transportation manages all the roads. Thus, the responsible agency received actual notice and, probably, was the only agency that could be responsible. The Commonwealth has noted that the Department of Corrections, which built the bunk beds in Chippokes Plantation State Park, might possibly be liable in the present case, though. While Ahari may not bind this court,
No other factors mitigate this failure. While the Commonwealth admits it had actual notice of the DCR’s liability, actual notice does not obviate a duty to comply strictly with the VTCA. Haley v. Haley,
While actual or substantial notice may accomplish all the purposes of general notice rules, the Court is not at liberty to rewrite the VTCA. Plaintiffs who wish to sue the Commonwealth must follow the rules the legislature has established, as only the legislative branch of government may rewrite the law.
2. Immunity
The Court would add, in dicta, that Plaintiff would not prevail even if notice were proper. The legislature designed the VTCA to allow citizens to sue for the negligence of employees of the Commonwealth, and not for legislative choices. Va. Code Ann. § 8.01-195.3. Plaintiff argues that renting cabins at Chippokes Plantation State Park is a proprietary function rather than a legislative one because it only helps a few people, not the general population. See VEPCO v. Hampton Redevel. Auth.,
Because the Court must construe the VTCA strictly, plaintiffs must comply with all requirements. Truelove failed to list the Virginia agency responsible for his injury within the time allowed by statute. As a result, his claim is forever barred, and the Court grants the Commonwealth’s plea of sovereign immunity and dismisses the complaint.