Cases Against the Commonwealth: Examining the Doctrine of Sovereign Immunity

Motor vehicle collisions occur on Virginia’s roads and highways on a daily basis. When people are injured through no fault of their own, Virginia’s law affords them the right to recover monetary damages from the individual who is civilly liable for causing the crash. From time to time, however, these everyday collisions involve state employees who are on the job. When a state actor causes a collision, the law regarding liability and recovery becomes much more complex, and may involve consideration of a doctrine known as “sovereign immunity.”

To understand the concept of immunity in the context of motor vehicle collisions, it is helpful to go back to the beginning and start with a basic overview of the history and evolution of the law itself. At the advent of the United States of America and the formation of American democracy, there was no formal, codified law. Although our system of government was in its infancy, early colonizers had a basic understanding that our new nation would have laws and a mechanism for enforcing those laws. Initially, this common understanding of the law of the land came to us from England.

Accordingly, the phrase “common law” refers to the unwritten part of law derived from custom and judicial precedent. This concept was originally transported to America from England.[1] As cases have been decided over the years, the common law has evolved through interpretation by American judges and its application to specific facts and circumstances. In its simplest sense, the common law is the law of the land that has existed for generations. It is not formalized in statutes enacted by the legislature or written down in legal code books.

If and when the legislature ratifies a statute that conflicts with, expands or otherwise defines the common law, that statute seizes the unwritten law and controls the outcome of a particular case. This is called the “statutory law.”

Understanding the difference between common law and statutory law frames the origins of the sovereign immunity defense to civil claims. At common law, certain defendants cannot be sued at all, or can only be sued under certain circumstances. In the age of the “divine right of kings,” the view was that the “king can do no wrong,” and therefore could not be sued.[2] The ‘sovereign’ was immune from suit. Since we do not have a monarchy, this concept of sovereign immunity was conferred first to the federal government and then to the individual state governments upon their formation. Thus, the common law of Virginia was that the Commonwealth was immune from civil suit until the legislature passed the Virginia Tort Claims Act in 1981.[3] In limited circumstances, the Act usurped the immunity conferred to Virginia by common law.

As applied to motor vehicle collisions involving state actors, the Virginia Tort Claims Act now permits the filing of tort actions against the Commonwealth in state courts for personal injuries caused by the negligence of an employee while acting within the scope of their employment.[4] This statutory waiver of immunity by the state still contains innumerable restrictions and limitations, which are spelled out in the statutes that comprise the Act.

In 1984, Virginia’s Supreme Court declared that the doctrine of sovereign immunity is still “alive and well” in the Commonwealth.[5] Depending on the individual facts of the case, suits against cities, towns, localities, regional entities, school boards, municipal corporations and others are still barred by sovereign immunity today.

As applied to state employees operating motor vehicles, Virginia law holds that if the defendant is employed by an immune governmental entity or other immune body at the time of the collision, and is acting in the course and scope of his or her employment for that entity, the government employee will generally be accorded the immunity of that entity .[6] Immunity of employees, and hence liability for personal injuries, depends on the function that employees perform and the manner of their performance.[7] Therefore, the critical issue for plaintiffs injured by state employees is whether that particular state employee is entitled to the protections of immunity under the facts and circumstances of the specific case.

The test for determining whether immunity exists involves consideration of four factors:

  1. The nature and function performed by the employee;
  2. The extent of the state’s interest and involvement in the function;
  3. The degree of control and direction exercised by the state over the employee; and
  4. Whether the act complained of involved the use of judgment and discretion.[8]

For concrete examples, persons driving emergency vehicles may be held to be exercising discretion in the performance of that function and may therefore enjoy immunity from suit unless their actions were grossly negligent.[9] On the other hand, routine driving situations have been considered ‘ministerial;’ therefore denying the employee protections under the sovereign immunity doctrine.[10]

The broad take away from this discussion is that courts will examine the particular facts and circumstances of each case individually and, in certain cases, may find that the state actor cannot be held civilly responsible for the collision.

If you or someone you know is injured in a motor vehicle collision involving the Commonwealth, Allen and Allen will review the facts of the case and explain whether, and how, the doctrine of sovereign immunity may apply.

About The Author: Kathleen Smith is an attorney with the Allen Law Firm whose practice is focused specifically on personal injury cases. She has a wealth of courtroom experience which provides her with a competitive advantage when representing her clients.


[1] http://dictionary.reference.com/browse/common-law .

[2] Friend, Charles E., Personal Injury Law in Virginia, § 11.2 (3rd ed. 2003).

[3] Va. Code Ann. § 8.01-195.1 et seq. available online at: https://vacode.org/8.01/3/ .

[4] Va. Code Ann. § 8.01-195.3.

[5] Messina v. Burden, 228 Va. 301, 307 (1984).

[6] See e.g., Hinchey v. Ogden, 226 Va. 234 (1983)(employee of the state has whatever immunity the state can claim).

[7] James v. Jane, 221 Va. 43 (1980).

[8] See McBride v. Bennett, 288 Va. 450, 455 (2014) citing James v. Jane, 221 Va. 43, 53 (1980).

[9] See e.g., Colby v. Boyden, 241 Va. 125, 128 (1991).

[10] See e.g., Heider v. Clemons, 241 Va. 143 (1991).