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Eliminate sovereign immunity for localities, conference says

The Boyd-Graves Conference voted this afternoon to recommend that the General Assembly extend the Virginia Tort Claims Act to local governments.


The committee assigned to study the issue split 5-5, which suggested that a consensus among the full membership of the conference would be unlikely.


The conference is composed of lawyers who represent the interests of both plaintiffs and defendants, and its rules require that it recommend legislation only if it has overwhelming agreement on the issue.


Wiley F. Mitchell Jr., who sponsored the tort claims act when he was a senator from Alexandria, told the conference that the state’s current system of tort liability for localities is confusing and unfair. Counties have total sovereign immunity while cities have total liability for injuries incurred during the performance of a proprietary function but complete immunity when injuries are incurred during the performance of a governmental function.


The lack of consistency and predictability in cases attempting to distinguish proprietary and governmental functions only compounds the unfairness, Mitchell argued. Moreover, he said, the practice by localities of defending employees sued in their personal capacity for acts performed while working for the government indicates that a more rational system would actually cost less.


Opponents of the proposal countered that immunity should be preserved in the absence of any credible evidence about the cost of eliminating it.


The conference had pressed earlier for a study of the costs, but the General Assembly has refused to authorize one.


In the end, the fairness argument prevailed by a 71-20 vote.

By Alan Cooper

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