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Court rejects commonwealth’s ‘misunderstanding’ of VTCA

Nick Hurston//July 3, 2023

Jail cell with door opening


Court rejects commonwealth’s ‘misunderstanding’ of VTCA

Nick Hurston//July 3, 2023//

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The Court of Appeals of Virginia has affirmed a trial court’s denial of the commonwealth’s plea for sovereign immunity from liability under the Virginia Tort Claims Act, or VTCA, for the negligent conduct of its employees.

The commonwealth claimed that the VTCA didn’t waive immunity where the allegedly tortious conduct arises from the performance of any governmental function that can’t be performed by a private person, such as running a prison.

But Judge Glen A. Huff said the commonwealth “misunderstands the plain meaning of the VTCA.”

“The Commonwealth’s interpretation of the VTCA only confuses the private-person clause with the municipal-liability test and the legislative-function exception by collapsing them all into one doctrine,” the judge wrote. “The four words of the private-person clause do not create that result.”

Huff was joined by Judges Robert J. Humphreys and Dominique A. Callins in Commonwealth v. Muwahhid (VLW 023-7-220).

Unwarranted searches

Hannah Fatima Muwahhid alleged that prison guards repeatedly subjected her to strip and body cavity searches and falsely claimed that K-9s alerted to her when she visited her husband who was incarcerated at Sussex II State Prison in Waverly.

No contraband was ever found on Muwahhid. She also claimed to have overheard prison employees making “derogatory comments … regarding her religious clothing.”

Muwahhid further claims that when she complained to the Virginia Department of Corrections, or VADOC, her husband was transferred to a prison far from where she lived.

In her complaint filed with the Sussex County Circuit Court against the commonwealth and several VADOC employees, Muwahhid asserted several claims, including liability under the VTCA.

In its plea of immunity, the commonwealth argued that the VTCA “limit[s] [its] waiver of immunity to only those matters where a private person could be liable” and thus “preserves immunity for exclusively governmental functions,” such as operating a prison.

The trial court ruled that “[t]he creation of policies governing who may enter a prison is indeed a legislative function of an agency for which the Commonwealth is immune, and when their enforcement is mandatory, that immunity remains.”

“Yet when the enforcement of these rules is alleged to be negligent or discriminatory, the function becomes discretionary, thereby eliminating the defense of immunity,” the trial court wrote in its denial of the commonwealth’s plea.

The Commonwealth petitioned for interlocutory appeal.

Private-person clause

The VTCA states that “‘the Commonwealth shall be liable for claims for money … on account of damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth … , if a private person, would be liable to the claimant for such damage, loss, injury or death (emphasis added),’” Huff explained.

Known as the “private-person clause,” the commonwealth claimed that it referred to the function its employees were performing when they committed an allegedly tortious act. Because a private person can’t perform a governmental function, such as operate a prison, the commonwealth said it was immune.

Huff, who interpreted this argument to mean the government would be immune from tort liability during the performance of any governmental function, disagreed.

The VTCA “focuses not on whether a private person ‘could’ perform the same activity but whether liability ‘would’ exist if the Commonwealth were swapped with a private person,” he wrote. “If a claimant would have a legitimate cause of action against a private person under traditional tort principles — duty, breach, proximate causation, and damages — then the Commonwealth has waived its immunity for such a claim and may be liable just as a private person would.”


Huff said the enumerated exceptions to the VTCA’s liability waiver — such as “legislative-function” and “judicial function” — “reveal the fallacy of the Commonwealth’s interpretation.”

“Were the private-person clause to mean that the VTCA does not waive sovereign immunity whenever the government performs any governmental function, then the VTCA would not need any of the explicit exceptions listed above — all of which describe quintessential governmental functions,” he wrote. “The Commonwealth’s interpretation would thus render those specific exclusions surplusage.”

The judge added that the commonwealth’s interpretation made little sense because it would “graft the test used to determine whether sovereign immunity shields municipalities onto a statute that waives immunity for the Commonwealth.”

Huff pointed out that, unlike the commonwealth, municipalities aren’t always entitled to sovereign immunity, absent a waiver.

“Instead, ‘[s]overeign immunity protects municipalities from tort liability arising from the exercise of governmental functions’ — that is, those ‘powers and duties performed exclusively for the public welfare’ — but not for ‘proprietary functions,’ which ‘are performed primarily for the benefit of the municipality’” he explained.

Finding nothing in the VTCA to suggest that the municipal liability test applied to the private-person clause, Huff said the court “cannot stretch the private-person clause in a way that ‘read[s] into [the] statute language that the legislature chose not to include.’”

This interpretation is consistent with how the Supreme Court of Virginia has applied the VTCA, as well as how the federal government and other state governments have applied their respective tort claims acts, he noted.


Huff said the commonwealth’s argument for immunity in all governmental functions explained the trial court’s analysis.

“While a legislative activity is always a governmental activity, the reverse is not necessarily true,” the judge said. “It was therefore the Commonwealth, not the trial court, that confused the issues by collapsing the legislative-function exception within its interpretation of the private-person clause.”

Huff compared the instant case to Maddox ex rel. Maddox v. Commonwealth, in which the Supreme Court of Virginia said that a commonwealth agency’s design of sidewalks was immune as a governmental and a legislative function.

Here, Muwahhid alleged negligence “not in the way VADOC employees adopted policy but instead in how they executed those policies, including their failure to follow existing policy and procedures.”

“Unlike the design of a sidewalk, the corrections officers’ alleged actions did not involve discretionary policy decisions such as ‘determin[ing] whether public funds should be expended,’” Huff wrote.

Finding that the “execution of policies and procedures is not a legislative function,” the judge concluded that the commonwealth may still be liable for those sorts of actions under the private-person clause.

‘A twist’

Staunton litigator Christopher M. Okay told Virginia Lawyers Weekly that Muwahhid found him because he represented another woman strip-searched by VADOC during visitation in Calloway v. Brown, et al. (“Strip-search of visitor to prison was reasonable,” VLW 018-3-374).

“This wasn’t the first time I had run into these arguments but the commonwealth put a twist on Calloway by trying to overlay municipal liability principles on the VTCA,” he said, adding that the latter is a comprehensive statute with its own test. “The implication would have been very broad immunity for correctional officers.”

Okay recalled an early lesson working for Washington D.C. attorney William Bransford.

“He told me to actually read the statutory language and not try to put any twist on it,” Okay said.

Pointing out recent statutory protections against threats to visitation privileges if a visitor refuses what they believe to be an unreasonable search demand, Okay argued on appeal that the legislature had a chance to clarify VADOC’s liability standard but “didn’t touch that with a 10-foot pole.”

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