protection of sovereign immunity in Virginia

2016Va. 1995) (“Yet, only negligent conduct is protected by the doctrine; acts constituting gross negligence or intentional torts are not immunized.”) (citing Fox v. Deese, 234 Va. 412 (1987); James, 221 Va. at 43 )); McBride v. Bennett, 250 Va. 450 , 463 n. 2 (2014) (“Thus, when ‘a defendant’s actions are clothed with sovereign immunity, a plaintiff must establish gross negligence in order to prevail.’”) (quoting Colby v. Boyden, 241 Va. 125, 130 (1991)); Burns v. Gagnon, 283 Va. 657, 677 (2012) (“If an individual working for an immune governmental entity is entitled to the protection of sovereig

2014To determine whether an individual working for an immune governmental entity is entitled to the protection of sovereign immunity, we apply a four-part test first enunciated in James v. Jane, 221 Va. 43, 53 , 282 S.E.2d 864, 869 (1980).

2024Hinchey, too, was an individual capacity case. - 12 - Finally, in the 1984 case Messina v. Burden, the Court examined “under what circumstances an employee of a governmental body is entitled to the protection of sovereign immunity.” 228 Va. at 307 .

2024Hinchey, too, was an individual capacity case. - 12 - Finally, in the 1984 case Messina v. Burden, the Court examined “under what circumstances an employee of a governmental body is entitled to the protection of sovereign immunity.” 228 Va. at 307 .

2024“If an individual working for an immune governmental entity is entitled to the protection of sovereign immunity under the common law, he is not immunized from suit. ‘Rather, the degree of negligence which must be shown to impose liability is elevated from simple to gross negligence.’” Burns v. Gagnon, 283 Va. 657, 677 (2012) (quoting Colby, 241 Va. at 128 ). 44 As previously discussed, this Court concludes that the circuit court intended to memorialize its oral rulings from the bench on March 3 in its August 24 order.

2024When a former Gloucester County High School student filed a complaint against two students and the assistant principal alleging “simple and gross negligence, assault, and battery,” the Court explained that although “an individual working for an immune governmental entity is entitled to the protection of sovereign immunity under the common law, he is not immunized from suit” and that in order to overcome an employee’s derivative sovereign immunity, the - 15 - “‘degree of negligence . . . is elevated from simple to gross negligence.’” Burns, 283 Va. at 663 , 677 (quoting Colby v. Boyden, 241 Va.

2025See Friday-Spivey v. Collier, 268 Va. 384, 387-88 (2004) (noting the Supreme Court of Virginia’s “test for determining whether an individual working for an immune governmental entity, such as a county employee . . . , is entitled to the protection of sovereign immunity” (emphasis added)).

2016The Supreme Court of Virginia “has outlined a four-factor test for determining whether an individual working for an immune governmental entity ... is entitled to the protection of sovereign immunity.” Friday-Spivey v. Collier, 268 Va. 384, 387-88 , 601 S.E.2d 591, 593 (2004).

2010In addition, “the question of whether a particular act [of a government employee] is entitled to the protection of sovereign immunity depends upon whether the act under consideration is classified as discretionary or ministerial in nature.” Id. at 128-29, 400 S.E.2d at 186.

2000In Colby v. Boyden, 241 Va. 125, 128-29 , 400 S.E.2d 184, 186-87 (1991), we discussed the test that we apply when determining whether a governmental employee is entitled to the protection of sovereign immunity.

2024“If an individual working for an immune governmental entity is entitled to the protection of sovereign immunity under the common law, he is not immunized from suit. ‘Rather, the degree of negligence which must be shown to impose liability is elevated from simple to gross negligence.’” Burns v. Gagnon, 283 Va. 657, 677 (2012) (quoting Colby, 241 Va. at 128 ). 44 As previously discussed, this Court concludes that the circuit court intended to memorialize its oral rulings from the bench on March 3 in its August 24 order.

2024When a former Gloucester County High School student filed a complaint against two students and the assistant principal alleging “simple and gross negligence, assault, and battery,” the Court explained that although “an individual working for an immune governmental entity is entitled to the protection of sovereign immunity under the common law, he is not immunized from suit” and that in order to overcome an employee’s derivative sovereign immunity, the - 15 - “‘degree of negligence . . . is elevated from simple to gross negligence.’” Burns, 283 Va. at 663 , 677 (quoting Colby v. Boyden, 241 Va.

2010In support of their plea of sovereign immunity, defendants rely on Lohr v. Larsen, 246 Va. 81 (1993), a case in which the court held a public health physician was entitled to the protection of sovereign immunity.

2001In Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642 (1993), the Supreme Court applied the James v. Jane control test and held that a public health physician who was employed by the State Health Department was entitled to the protection of sovereign immunity.

2011Given Dr. West’s student function and the Commonwealth’s recognized interest in medical education and training of a “pool of specialists skilled in a particular discipline,” see Gargiulo, 239 Va. at 213 , 387 S.E.2d at 790 , these factors weigh heavily in favor of granting Dr. West the protection of sovereign immunity.

2011Given Dr. West’s student function and the Commonwealth’s recognized interest in medical education and training of a “pool of specialists skilled in a particular discipline,” see Gargiulo, 239 Va. at 213 , 387 S.E.2d at 790 , these factors weigh heavily in favor of granting Dr. West the protection of sovereign immunity.

2012Having concluded that Burns owed at least a common-law duty to supervise and care for Gagnon, we now turn to the question whether Burns is entitled to the protection of sovereign immunity. "`The existence of sovereign immunity is a question of law that is reviewed de novo.'" Lee v. City of Norfolk, 281 Va. 423, 439 , 706 S.E.2d 330, 338 (2011) (quoting City of Chesapeake v. Cunningham, 268 Va. 624, 633 , 604 S.E.2d 420, 426 (2004)).

2012Having concluded that Burns owed at least a common-law duty to supervise and care for Gagnon, we now turn to the question whether Burns is entitled to the protection of sovereign immunity. "`The existence of sovereign immunity is a question of law that is reviewed de novo.'" Lee v. City of Norfolk, 281 Va. 423, 439 , 706 S.E.2d 330, 338 (2011) (quoting City of Chesapeake v. Cunningham, 268 Va. 624, 633 , 604 S.E.2d 420, 426 (2004)).

2011See, e.g., Hey, 80 Va. Cir. at 366 , 2010 Va. Cir. lexis 168; Shelton v. Univ. of Va., 80 Va. Cir. 353, 356 , 2010 Va. Cir. lexis 167 (Charlottesville 2010); Carter v. University of Va. Health Sys., 52 Va. Cir. 416, 420 , 2000 Va. Cir. lexis 306 (Charlottesville 2000); nevertheless, guided by the Virginia Supreme Court’s decision in Lee v. Bourgeois, 252 Va. 328, 333 , 477 S.E.2d 495, 499 (1996) (holding that despite the paramount state interest in having a good medical school, a medical school professor was not entitled to sovereign immunity when he functioned as an attending physician), this

2011See, e.g., Hey, 80 Va. Cir. at 366 , 2010 Va. Cir. lexis 168; Shelton v. Univ. of Va., 80 Va. Cir. 353, 356 , 2010 Va. Cir. lexis 167 (Charlottesville 2010); Carter v. University of Va. Health Sys., 52 Va. Cir. 416, 420 , 2000 Va. Cir. lexis 306 (Charlottesville 2000); nevertheless, guided by the Virginia Supreme Court’s decision in Lee v. Bourgeois, 252 Va. 328, 333 , 477 S.E.2d 495, 499 (1996) (holding that despite the paramount state interest in having a good medical school, a medical school professor was not entitled to sovereign immunity when he functioned as an attending physician), this

2010Rather, the degree of negligence which must be shown to impose liability is elevated from simple to gross negligence.” Colby v. Boyden, 241 Va. 125, 128 , 400 S.E.2d 184, 186 (1991) (citing 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)).

2010In addition, “the question of whether a particular act [of a government employee] is entitled to the protection of sovereign immunity depends upon whether the act under consideration is classified as discretionary or ministerial in nature.” Id. at 128-29, 400 S.E.2d at 186.

2024Instead, if the amended complaint sufficiently alleged gross negligence, it would mean that the claim for gross negligence should continue against the defendant, who has been immunized from suit only for his simple negligence, and that the circuit court was wrong to dismiss the entire case based on immunity for negligence alone. 6 In Atkinson v. Sachno, 261 Va. 278, 284 (2001), the Supreme Court stated, “So that no doubt will exist on that issue, we expressly hold that while some employees or agents of the Commonwealth may be entitled to the protection of sovereign immunity, all independent co

2002For example, instead of analyzing “the degree of control and direction exercised by the state over the employee” and the Court would analyze “the degree of control exercised by the governmental entity over the employee.” In Atkinson v. Sachno, 261 Va. 278 (2001), the Virginia Supreme Court said in dicta that “some employees and agents of the Commonwealth may be entitled to the protection of sovereign immunity.” Id. at 284 . 2 Although James did not explicitly indicate that agents of government entities other than the Commonwealth are eligible for sovereign immunity protection, agents of the Co

2024Co. of Am., 290 Va. 314, 331 (2015).

2023See Azfall, 273 Va. at 230-31.

2012Having concluded that Burns owed at least a common-law duty to supervise and care for Gagnon, we now turn to the question whether Burns is entitled to the protection of sovereign immunity. "`The existence of sovereign immunity is a question of law that is reviewed de novo.'" Lee v. City of Norfolk, 281 Va. 423, 439 , 706 S.E.2d 330, 338 (2011) (quoting City of Chesapeake v. Cunningham, 268 Va. 624, 633 , 604 S.E.2d 420, 426 (2004)).

2012Having concluded that Burns owed at least a common-law duty to supervise and care for Gagnon, we now turn to the question whether Burns is entitled to the protection of sovereign immunity. "`The existence of sovereign immunity is a question of law that is reviewed de novo.'" Lee v. City of Norfolk, 281 Va. 423, 439 , 706 S.E.2d 330, 338 (2011) (quoting City of Chesapeake v. Cunningham, 268 Va. 624, 633 , 604 S.E.2d 420, 426 (2004)).

2011See, e.g., Hey, 80 Va. Cir. at 366 , 2010 Va. Cir. lexis 168; Shelton v. Univ. of Va., 80 Va. Cir. 353, 356 , 2010 Va. Cir. lexis 167 (Charlottesville 2010); Carter v. University of Va. Health Sys., 52 Va. Cir. 416, 420 , 2000 Va. Cir. lexis 306 (Charlottesville 2000); nevertheless, guided by the Virginia Supreme Court’s decision in Lee v. Bourgeois, 252 Va. 328, 333 , 477 S.E.2d 495, 499 (1996) (holding that despite the paramount state interest in having a good medical school, a medical school professor was not entitled to sovereign immunity when he functioned as an attending physician), this

2011See Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 245 , 591 S.E.2d 76, 78 (2004); James v. Jane, 221 Va. 43, 51 , 282 S.E.2d 864, 868 (1980). [2] However, GMU's sovereign immunity has not been waived to the extent that DiGiacinto's declaratory judgment proceeding is premised on statutory and non-constitutional claims, and DiGiacinto has not challenged the propriety of the dismissal of all such claims by the circuit court, based upon GMU's plea of sovereign immunity.

2011See Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 245 , 591 S.E.2d 76, 78 (2004); James v. Jane, 221 Va. 43, 51 , 282 S.E.2d 864, 868 (1980). [2] However, GMU's sovereign immunity has not been waived to the extent that DiGiacinto's declaratory judgment proceeding is premised on statutory and non-constitutional claims, and DiGiacinto has not challenged the propriety of the dismissal of all such claims by the circuit court, based upon GMU's plea of sovereign immunity.

2010See id.

2010The distinction between providing direct patient care and performing a training or teaching function was recognized in this Court by Judge Swett in Houchens v. Rector and Visitors of the University of Virginia, 23 Va. Cir. 202, 205 (Charlottesville 1991) (holding that several nurses with specialized training employed at the University of Virginia Hospital were not entitled to the protection of sovereign immunity for claims of ordinary negligence in the use of heat lamps).