Under the old English common law, on which much of American law is based, a person could not sue the king. This concept, which is called “sovereign immunity,” was adopted in the United States, and prevented legal claims against the government. Over time, however, the absolute prohibition against suing the government has been modified by statute. In Virginia, the Virginia Tort Claims Act allows individuals to pursue civil claims for monetary damages against the Commonwealth of Virginia and its subsidiary agencies and political subdivisions (for example, the Virginia Department of Transportation).
The Virginia Tort Claims Act: What Is It?
The Virginia Tort Claims Act (VTCA) provides legal immunity to the Commonwealth of Virginia and its employees, if the employees were negligent. It does not provide legal immunity for gross negligence, which occurs when a defendant did not exercise any care or concern for the safety of others (“the absence of slight diligence or the want of even scant care.”) A defendant who showed some degree of care might be negligent, but they would not be grossly negligent. As a general matter, the jury will decide whether the defendant was negligent or whether they were grossly negligent.
The VTCA limits a plaintiff’s damages to one hundred thousand dollars ($100,000) for claims arising out of “damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any [Commonwealth] employee while acting within the scope of their employment.” Liability of the Commonwealth under the VTCA rests solely on a “negligent or wrongful act or omission of any employee while acting within the scope of their employment under circumstances where the Commonwealth . . ., if a private person, would be liable to the claimant for such damage, loss, injury, or death.”
The Virginia Supreme Court, however, has held that the VTCA applies only to claims of ordinary negligence, and not to claims of gross negligence or to intentional torts. So the limitation to $100,000.00 only applies in cases of ordinary negligence.
The several standards defining gross negligence enunciated by the Supreme Court of Virginia include, as a common thread, a complete lack of care exhibited by a defendant. Gross negligence has been defined as:
“that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another. It is a heedless and palpable violation of the legal duty to respect the rights of others. Gross negligence amounts to the absence of slight diligence or the want of even scant care.” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691 (1987) (citations omitted).”
Thus, a claim for gross negligence cannot go forward, as a matter of law, in those cases where a defendant exercised some degree of care toward the plaintiff.
Examples: The Act in Action
- For example, the case of Whitley v. Commonwealth involved a wrongful death lawsuit against doctors and nurses at a correctional facility. The Virginia Supreme Court upheld a trial court’s ruling that the defendants did not act with gross negligence, as a matter of law, because the plaintiff could not show they did not exercise “at least some degree of care” towards the patient who died.
- Similarly, in the case of Colby v. Boyden, the Virginia Supreme Court found that a defendant police officer, who was involved in a motor vehicle collision with the plaintiff, did not act with gross negligence because he exercised “some degree” of diligence and due care for the safety of others.
Despite requiring a plaintiff to show the defendant exercised a total lack of care, gross negligence does not require a showing of willful recklessness.
Aside from these holdings, however, it remains the rule that when reasonable minds could come to different conclusions, gross negligence is an issue of fact to be decided by the jury. It will become a question of law (and thus decided by the judge, not the jury) only when reasonable minds could not differ in concluding gross negligence has not been established.
- By way of illustration, in the Whitley case, a medical malpractice case mentioned above, the deceased person was a mentally impaired person with an epileptic condition who required constant medication to prevent the onset of seizures. He died from a seizure while incarcerated. The Administrator of his Estate claimed that the doctor was grossly negligent in allowing the deceased inmate’s medication levels to fall below the amount appropriate for his condition, by failing to prescribe sufficient medication and by failing to supervise the inmate’s taking of the medication. Although the Court ultimately decided the case on other grounds, it noted that, as a matter of law, the defendant physician did not act with gross negligence because he exercised some care towards the deceased inmate by reviewing his blood samples, counseling him regarding the importance of taking medication, and assessing his capability of following a daily medication regimen. The Court went on to note that even though the decedent did not take his medication 100% of the time while under the defendant’s care, the fact that he did take it approximately 85% of the time was sufficient to show that the defendant doctor exercised at least some care.
In sum, generally speaking, the VTCA will protect employees of the Commonwealth of Virginia from claims for ordinary negligence, but will not afford employees protection with respect to claims for gross negligence or intentional torts. If reasonable minds could differ on whether a defendant acted with gross negligence, the question is one for a fact-finder; however, if reasonable minds could not differ, the question is one for a judge to decide as a matter of law.