First Responder Liability and Sovereign Immunity: A Court Divided

Maureen E. Cummins, Esquire
November 22nd, 2014
By: Maureen E. Cummins, Esquire

The modern concept of sovereign immunity is derived from the old English maxim rex non potest peccare, i.e. “the king can do no wrong.” This powerful tool immunizes many governmental entities and government agents from tortious liability and serves a public policy purpose of “[protecting] the state from burdensome interference with the performance of governmental functions and preserves its control over state funds, property, and instrumentalities.” Messina v. Burden, 228 Va. 301, 307 (1984). Put plainly, sovereign immunity allows the government to continue performing its functions for the public good without the fear of constant, draining, and crippling litigation. While the concept appears straightforward, its application is not.

In McBride v. Bennett, et al., 2014 Va. LEXIS 146 (2014), the Supreme Court of Virginia was recently tasked with navigating the murky waters of sovereign immunity as it applies to municipal employees. On July 25, 2010, at approximately 1 a.m., police officers from the City of Norfolk responded to investigate a domestic disturbance call, and while en route, one of the officers hit and killed a bicyclist. The dispatcher had not initially declared the call to be an emergency, so neither officer activated their emergency lights or sirens; however, both were traveling over the speed limit. The family filed a wrongful death suit and the officers filed special pleas in bar on the grounds of sovereign immunity.

Justice Powell, writing for the majority, reiterated the four-factor James test for determining if a municipal employee is entitled to sovereign immunity but seemingly added an additional factor to the analysis: whether the governmental employee’s assessment and response was objectively reasonable. The Court held that the police officers were engaged in a governmental function which required the exercise of judgment and discretion to best effectuate the governmental purpose. Further, even though the officers may have violated police policy with regard to proper procedure for non-emergency responses, the court found that the manner of the officers’ response was objectively reasonable, thus entitling them to sovereign immunity.

Chief Justice Kinser, joined by Justice McClanahan, concurred, but noted that the Court should not look at “how” the governmental employee chose to respond and decide whether it was objectively reasonable; rather the court should simply ask whether an employee of an immune governmental entity, while driving, was engaged in routine driving, or driving which involved the exercise of judgment and discretion. Adding the “objectively reasonable” standard marks a departure from Supreme Court precedent without explaining the purpose of adding a new element to the analysis.

Justice Mims dissented, stating that this case was akin to Friday-Spivey v. Collier, 268 Va. 384 (2004) where the Supreme Court refused to grant sovereign immunity to a fire truck driver who collided with another vehicle while responding to a non-emergency phone call. Justice Mims found that by treating a non-emergency phone call as an emergency, which meant the police officers were travelling at reckless and excessive speeds without emergency sirens or lights, the officers directly disobeyed non-emergency response protocol, acted outside their authority and ignored their chain of command. He would have denied immunity because the officers did not have to make decisions with regard to their manner of non-emergency response because police superiors had designed protocol for officers to follow, thus eliminating any individual judgment or discretion on behalf of responding officers.

As we can see by this divided court, while the doctrine of sovereign immunity is “alive and well” in the Commonwealth, its application is far from straightforward and often results in different opinions.


This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More