Virginia Lawyers Weekly VA Lawyers Weekly
The county attorney’s office in Fairfax has three notches on its belt with recent wins using the sovereign immunity defense.
In three different injury claims, judges in Fairfax and Alexandria have extended the protection of the doctrine of sovereign immunity to Fairfax County employees, including police officers in two cases. The doctrine is a “harsh sort of reality to our law,” one judge said.
Nevertheless, the sovereign immunity doctrine is “alive and well in Virginia,” said a staff attorney for the county.
One lawyer, whose client now has to look to other sources of recovery, said a divided Virginia Supreme Court muddied the waters in 2014 by extending sovereign immunity to cover two officers involved in a fatal collision with a bicyclist.
Search for wayward students
Fairfax County Circuit Judge Randy I. Bellows on March 6 barred a claim against a county officer who was responding to a report of high school students at large during a late-night school event.
The officer allegedly pulled his police car in front of another driver who was injured. Bellows sustained a plea in bar to a negligence claim against the officer.
Bellows’ decision came in Groff v. Lawson (VLW 019-8-022).
The case involved Officer Stephen Lawson’s response to a troubling report during a traditional all-night graduation party at Westfield High School in June of 2016. At about 2 a.m., Lawson was told there was a report that students were fleeing from the school.
He got in his police car and drove on nearby streets to look for any fugitive students. Spotting a school official, the officer made a turn in front of an oncoming car and the two cars collided.
The injured plaintiff, represented by Thomas J. Curcio, argued the officer was merely seeking to enforce rules for the party as part of a contract between parents and the school’s PTSA.
But Bellows said the officer was acting in the role of a school resource officer assigned to protect student safety.
“When Officer Lawson heard that students were ‘fleeing’ the school, he recognized, and acted upon, the clear danger this posed to the students and public and the need to immediately investigate the reason why students were fleeing the school. These are core responsibilities of a police officer and required an immediate law enforcement response,” Bellows wrote.
Addressing Virginia’s four-factor test for immunity of government employees, Bellows cited with approval the 2014 decision of the Supreme Court of Virginia in McBride v. Bennett in which a bicyclist died after being hit by a fast-moving police car responding to a domestic disturbance. The court’s decision emphasized a “special risks” analysis of the actions of government employees.
“Officer Lawson’s evaluation of the situation – that he was dealing with an urgent situation that posed an immediate danger to students and the public – was objectively reasonable, as was his decision to employ his vehicle, and undertake special risks, in an effort to address the danger,” Bellows wrote.
Curcio said his client had underinsured motorist coverage, which applies by statute when sovereign immunity prevails, but he added, “I’m not certain it’s sufficient.”
The McBride case is an obstacle for plaintiffs, Curcio said. It signals courts are to give “little or no consideration to police rules and procedures,” he said. For officers on “official calls,” there’s a low bar to invoke sovereign immunity, Curcio said.
Pedestrian hit by trash truck
Fairfax Circuit Judge Grace Burke Carroll also cited McBride in sustaining a plea in bar to simple negligence claims filed by a pedestrian who was struck by a county frontload trash truck.
The truck – which emptied dumpsters – struck the pedestrian as she stood in the median at an intersection.
Carroll’s March 18 decision came in Parada-Segova v. Barlow (VLW 019-8-026).
Carroll cited evidence that the collection of garbage is a governmental function directly tied to the health, safety and welfare of citizens. Even though private businesses also provide trash collection, government trash collection is for the general benefit and well-being of citizens, the judge reasoned.
Carroll said there was no dispute that the county had an interest in keeping the county clean and was instrumental in waste collection, satisfying the second and third prongs of the four-factor test.
Carroll said confusion about application of the sovereign immunity doctrine comes largely from interpretation of the fourth prong – the employee’s use of judgment and discretion.
Generally, for drivers of specialized vehicles, sovereign immunity applies, the judge said. Carroll described as an “outlier” a 2004 Supreme Court decision in which the justices denied immunity for the driver of a heavy fire truck.
In Parada-Segova, Carroll said the trash truck driver “was effectuating a government purpose at the time of the accident.”
“With every stop, the contents of the dumpster were added to the vehicle increasing the weight of the truck. Maneuvering of that vehicle becomes more challenging until the driver must make a determination when to dump his load or continue on with his route,” the judge wrote.
Rear-ender by officer
In June, Alexandria Circuit Judge Lisa B. Kemler sustained a plea in bar for a Fairfax officer who slammed into the back of another car after looking down to check a computer message.
“These cases are always … hard cases for both the court to decide and for the injured parties to accept,” Kemler said from the bench on June 6, according to a transcript. “It’s a harsh sort of reality of our law, the law of sovereign immunity,” she continued.
Kemler ruled for the officer in the case of Ishan v. Jones based on the officer’s use of judgment and discretion at the time of the accident. There was no written opinion, only a July 2 order that referenced and incorporated the lengthy transcript.
The Ishan case – with two injured plaintiffs – resolved shortly after Kemler’s decision with involvement of an uninsured motorist carrier, according to plaintiffs’ counsel David M. Kopstein.
He said he thought Kemler “sort of stretched the limits” with the officer who took his eyes off the road.
“Apparently, the public policy is to give these police officers the broadest possible protection because we don’t want these officers worrying about their exposure as they do their jobs,” Kopstein said.
Fairfax County Assistant County Attorney Sarah W. Townes – defense counsel in both Groff and Ishon – agreed sovereign immunity now casts a wide blanket of protection for police.
“The courts, I think, now are saying that – if you’re just driving to Subway for lunch, no – but if there is any dispatch for an officer, they are covered,” Townes said in a March 22 interview.
