Defendant police officers have satisfied the four-part test for sovereign immunity and the Norfolk Circuit Court grants their special plea in bar filed in response to plaintiff’s negligence suit.
Virginia applies the test from James v. Jane, 221 Va. 43 (1980), in order to determine whether a government actor is entitled to sovereign immunity. This test considers: 1) the nature of the function the employee performs; 2) the extent of the government’s interest and involvement in the function; 3) the degree of control and direction exercised over the employee by the government; and 4) whether the act in question involved the exercise of discretion and judgment. In this case, the parties apparently agree that, as police officers, defendants satisfy the first three prongs, leaving only the issue of whether they exercised discretion as police officers on the night of the incident here.
Plaintiff cites Muse v. Schleiden, 349 F. Supp. 2d 990 (E.D. Va. 2004), for the proposition that how an officer exercises his discretion matters for purposes of determining sovereign immunity. Plaintiff contends that officers are only entitled to immunity if they exercise their discretion in a “good” or sensible way. However, this court holds that Muse does not stand for this proposition. The court’s central holding in that case was no one factor can determined whether immunity applies, but rather turns on whether the situation presents a genuine need for judgment and discretion on the part of the emergency responder. If a defendant must exercise such discretion, he is entitled to sovereign immunity.
After consideration of the line of Virginia cases involving similar circumstances, this court finds that whether the discretion exercised by a police officer is advisable is not relevant to the determination of immunity. The appropriate question is whether the officer exercised discretion at all. In this case, defendants exercised their discretion by determining whether and how to respond to the police dispatch for assistance. Therefore, defendants do satisfy all four prongs of the James test and are entitled to sovereign immunity.
Defendants’ special pleas in bar of sovereign immunity are sustained.
McBride v. Bennett & Folston (Jones) No. CL 11-8551, April 8, 2013; Norfolk Cir.Ct.; Carl. C. LaMondue, James E. Brydges, Alan B. Rashkind for the parties. VLW 013-8-058, 2 pp.