Trial Court’s Denial of Sovereign Immunity Reversed by the Virginia Supreme Court

Nicole L. Antolic
January 19th, 2021
By: Nicole L. Antolic

Recently, Julia Judkins secured a victory in the Virginia Supreme Court when it granted a Petition for Interlocutory Appeal pursuant to Va. § Code 8.01-670.1(B) and reversed the trial court’s denial of the petitioners/defendants’ plea in bar in Ann Marie Francis v. Patricia Fitzgerald, et al., Circuit Court Case No. CL18-2643. The issue on appeal was whether the trial court improperly denied the defendants’ plea in bar and subsequent motion for reconsideration as to their entitlement of sovereign immunity.

This case arises from an assault on the plaintiff by a fifteen-year-old foster child. The defendants were social workers and employees of an immune entity previously dismissed from the case. In coordinating the placement of a fifteen-year-old foster child, they obtained information about the child from various sources and performed assessments to determine whether there was a family that appropriately met the best interests of the child. The defendants followed state mandated procedures and guidelines and exercised their own professional judgment and discretion in making these determinations. Ultimately, they identified the plaintiff as a potential foster parent for the child in part because of her experience fostering other children of the same age and because she had other children of the same age. Following placement, the defendants arranged planning meetings to determine what services the child might require to help him adjust to his new environment and whether and when therapy might be appropriate. Despite the initial success of placement, after returning home from a week with his grandparents, the child attacked the plaintiff with a baseball bat causing significant injuries.

The plaintiff filed suit for negligence and gross negligence against the defendants alleging that they “had a duty to monitor and examine the foster children for whom it was their duty to care” and “had a duty to warn prospective foster parents if a foster child presented a potential danger, so that decisions could be made prior to accepting placement of the child and even possibly after accepting placements . . . that might mitigate the danger presented by the foster child.” According to the plaintiff, the defendants allegedly “downplayed the dangers posed by” the foster child and “fail[ed] to warn Mrs. Francis of the risks she faced[.]” The defendants/petitioners filed a plea in bar arguing that they were entitled to sovereign immunity for plaintiff’s claims of negligence because, as employees of an immune entity, they exercised judgment and discretion in finding placement for the child. The trial court denied the plea in bar finding that the defendants “followed mandated state standards to locate and place the child in a home,” and as a result did not exercise judgment or discretion in their placement of the child. The defendants filed a motion for reconsideration, which was denied and subsequently filed an interlocutory appeal.


Julia B. Judkins


Nicole L. Antolic

In determining whether an employee is entitled to sovereign immunity for acts of negligence, the Virginia Supreme Court considered the four-factor test established in Messina v. Burden, 228 Va. 301 (1984). The Messina sovereign immunity factors include: (1) the nature of the function performed; (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. Id. at 305-06, 313. In the trial court, the first three factors were stipulated to as having been met. Analyzing the fourth factor in isolation, the trial court incorrectly held that because the social workers in this case followed mandated state standards to locate and place the child in a home, they did not exercise judgment or discretion. The Virginia Supreme Court noted that the “existence of such proscribed procedures and standards does not necessarily negate the presence of judgement and discretion in the implementation of those procedures and standards.” It went on to find that the defendant exercised judgment and discretion in placing the child with the plaintiff “even in the context of the significant amount of government control and regulation involved in the initial decision to place [the child] with a foster family.” It found that the defendants were “tasked with following various state-mandated protocols and procedures to determine what type of placement was appropriate;” however the ultimate decision to place the child with the plaintiff was “entirely discretionary” and based on professional judgment. Based on this, the Virginia Supreme Court reversed the judgment of the trial court. Julia B. Judkins and Nicole L. Antolic appeared on brief for the petitioners.


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