Tort: School Board immune from autistic student’s gross negligence claims

Where a lawsuit alleged a non-verbal autistic child was struck, insulted and allowed to leave a school bus partially unclothed, the circuit court erred when it denied the School Board’s sovereign immunity plea in bar. Although an exception applied where a vehicle owned, operated or insured by a school board was “involved in an accident,” the alleged incidents here did not fall within that exception. They may have happened on the bus, but they did not involve the bus as a vehicle.

Background

Z.M. is a non-verbal autistic child. The lawsuit alleges that, while Z.M. was being transported on a school bus on the way home, employees of the Newport News Public Schools struck him in the face, apparently with Z.M.’s wet sock, twice told him that they wished they could “whip his tail” and, after Z.M. had removed his pants and diaper, allowed him to leave the bus without any clothes on the lower part of his body. The complaint also alleged that school employees insulted Z.M. the previous day, saying he was acting like an “animal” and a “monkey.”

In response, the School Board filed a plea in bar, asserting that sovereign immunity required dismissal of the School Board as a party. The circuit court denied the plea with respect to Z.M.’s claims of simple and gross negligence against the School Board. The circuit court, however, granted the plea on the question of punitive damages, holding that sovereign immunity foreclosed such damages. The School Board filed an interlocutory appeal under Code §§ 8.01-626 and 8.01-670.2.

Analysis

The arguments of the parties center on whether the waiver of sovereign immunity found in Code § 22.1-194 contains one prerequisite or two. The court finds that the plain language of Code § 22.1-194 contains two prerequisites for a waiver of sovereign immunity.

First, a “vehicle” owned, operated, or insured by a school board must be “involved in an accident.” The waiver does not apply across the board to any situation covered by an insurance policy; rather, it applies when the specified vehicles are “involved in an accident.”

Second, the waiver applies if there is insurance coverage, and only to the extent of such coverage. Here, the parties do not dispute that insurance coverage is available. However, the waiver of sovereign immunity does not apply because, in this instance, the bus was not a “vehicle involved in an accident.”

The court need not establish the outer reach of what the term “accident” might mean because the allegations here – that the plaintiff was struck, insulted and allowed to leave the bus partially unclothed – do not even plausibly establish the prerequisite of a vehicle “involved in an accident.” The school bus itself was not involved in any accident.

The plaintiff’s injuries do not relate in any way to the way the bus was being operated or to the process of loading or unloading of passengers. Instead, the school bus was merely the situs of the alleged tort. In other words, the actions that are the subject of the complaint may have happened on the bus, but they did not involve the bus as a vehicle.

Finally, the plaintiff argues that the School Board is not immune when it comes to claims of gross negligence. Although government employees are not immune from claims of gross negligence, the School Board itself benefits from immunity from suit, whether the claims involve simple negligence, gross negligence or even intentional torts. The cases Z.M. cites all involved allegations of gross negligence against an employee of the government, not the actual sovereign itself.

Although sovereign immunity protects the School Board from suit, the same is not true for the School Board employees Z.M. has sued. Because the plaintiff alleges that these employees were grossly negligent, the action may proceed against the employees, who are not protected by derivative sovereign immunity in that circumstance.

Reversed and remanded.

Newport News School Board v. Z.M., Record No. 240833, May 8, 2025 (McCullough). VLW 025-6-014. 6 pp.