Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (I)

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In Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Circuit Court for Gloucester County, the brain injury victim is contesting the Assistant Principal’s Plea of Sovereign Immunity. One ground for opposition is that the Defendant’s alleged wrongful act is simply ministerial, which continues the five-part series.

Following James v. Jane, 221 Va. 43, 53 (1980) and Messina v. Burden, 228 Va. 301, 313, the Virginia Supreme Court in Lentz v. Morris, 236 Va. 78, 82 (1984)(emphasis added), focused the inquiry on “whether the alleged wrongful act involved the exercise of judgment and discretion” or simply was a ministerial one. Subsequently in First Va., the wrongful act was a Deputy Clerk’s indexing error. The Virginia Supreme Court reversed circuit court sustaining a demurrer, because “the negligence underlying the bank’s claim was malfeasance of a ministerial duty and ther cloak of sovereign immunity does not cover such torts.” 225 Va. at 77.

Again citing James, the Virginia Supreme Court in Heider again focused on the wrongful act and elaborated that some situations present only a “ministerial obligation,” while other instances involve “acts of judgment and discretion;” such that defendant’s claim of sovereign immunity must be scrutinized on the particular facts of the case. “The holding and principle announced fifty years ago in Wynn [v. Grandy, 170 Va. 590 (1938)] remain viable today. While every person driving a car must make myriad decisions, in ordinary driving situations the duty of due care is a ministerial obligation. The defense of sovereign immunity applies only to acts of judgment and discretion which are necessary to the performance of the governmental function itself.In some instances, the operation of an automobile may fall into this category, such as the discretionary judgment involvement in vehicular pursuit by a law enforcement officer. However, under the circumstances of this case, the simple operation of an automobile did not involve special risks arising from the governmental activity, or the exercise of judgment or discretion about the proper means of effectuating the governmental purpose of the driver’s employer. Thus, on the showing here, the trial court properly held that Heider was not entitled to the defense of sovereign immunity.” 241 Va. at 145 (citations omitted). In Heider, a deputy sheriff driving while serving judicial process had collided with a motorcyclist.

The Virginia Supreme Court reaffirmed Heider in Friday-Spivey in 2004, focusing on the wrongful act yet again. In Friday-Spivey, a fire truck operator unsuccessfully sought sovereign immunity for personal injuries caused in responding to rescue a child locked in a car. The defendant unpersuasively cited “as examples of discretion and judgment his determination of the route to be taken and the maneuvering of the 40,000 pound pumper truck through traffic [and] the inherent difficulty and special skills required in operating a specialized piece of equipment”. Id. at 388. “Despite a natural inclination to classify the report of a child in a locked car as an ‘emergency,’ the facts of the case do not support the conclusion that Collier’s driving involved the exercise of judgment and discretion beyond that required for ordinary driving in routine traffic situations. * * * * The special skill and training required to operate a fire truck under these circumstances is not the exercise per se of judgment and discretion for purposes of sovereign immunity.” Id. at 390. The defendant’s “driving was a ministerial act requiring no significant judgment and discretion beyond that of ordinary driving in routine traffic.” Id. Thus, the Virginia Supreme Court concluded in Friday-Spivey that the fire truck operator “did not exercise judgment and discretion beyond that necessary in a ordinary driving situation – a ministerial act. As such, he is not entitled to sovereign immunity for his alleged negligence.” Id. (reversing grant of plea in bar and remanding for further proceedings).