McBride v. Bennett, Record No. 131301.

• Decision Date: 31 October 2014
• Docket Number: Record No. 131301.
• Citation: 288 Va. 450,764 S.E.2d 44
• Court: Virginia Supreme Court
• Parties: Carolyn McBRIDE, as Administrator of the Estate of Donnell Earl Worsley, Deceased v. Joey Gaylan BENNETT, Jr., Individually and as an Employee of the City of Norfolk, et al.

288 Va. 450

764 S.E.2d 44

Carolyn McBRIDE, as Administrator of the Estate of Donnell Earl Worsley, Deceased

v.Joey Gaylan BENNETT, Jr., Individually and as an Employee of the City of Norfolk, et al.

Record No. 131301.

Supreme Court of Virginia.

Oct. 31, 2014.

Carl C. La Mondue (La Mondue Law Firm, on brief), for appellant.

Alan B. Rashkind (Jonathan R. Hyslop ; Furniss, Davis, Rashkind and Saunders, Norfolk, on brief), for appellee Joey Gaylan Bennett, Jr.

Brian N. Cassey (James E. Brydges, Jr. ; Taylor & Walker, on brief), for appellee Derek Michael Folston.

PRESENT: All the Justices.

Opinion

Opinion by Justice CLEO E. POWELL.

Carolyn McBride (“McBride”), the administrator for the estate of Donnell Worsley (“Worsley”), appeals the trial court's judgment that sovereign immunity bars her wrongful death action against Joey Gaylan Bennett, Jr. (“Bennett”) and Derek Michael Folston (“Folston”).

I. BACKGROUND

On July 25, 2010, Bennett and Folston were on-duty police officers working for the City of Norfolk. At around 1:00 a.m., Folston received a call to transport a prisoner. Shortly thereafter, Bennett was dispatched to a domestic disturbance call in the Tidewater Gardens area of Norfolk. Folston overheard the dispatcher assign Bennett to investigate the domestic disturbance call and decided to provide backup for Bennett rather than respond to the transport call. Folston later explained that he decided to go because he was near Officer Bennett's location while the unit actually assigned to backup Bennett was “across the city,” and the police department required a backup unit for domestic disturbance calls.

In assigning Bennett to investigate the domestic disturbance call, the dispatcher did not assign a response code. According to Norfolk Police Department General Order OPR–710 (“OPR–710”), “[w]hen no specified response code is assigned to the message, response Code 3 will be used.” OPR–710 also dictates that, on calls designated Code 3, “[e]mergency lights and/or siren will not be used. All posted signs and traffic laws will be observed.” In addition to delineating Response Codes, OPR–710 also establishes when a police officer is authorized to engage in “emergency vehicle operation.”¹

In responding to the call, both officers began to drive across the Campostella Bridge. While Bennett did not know how fast he was traveling, Folston admitted to exceeding the speed limit after being passed by Bennett and to falling in line behind him as they drove up the bridge. At no point did either officer activate his emergency lights or sirens.

After cresting the crown of the bridge, Bennett began slowing down. At that point, Bennett saw Worsley riding on his bicycle, swerving, in the middle of the left lane, which was the same lane in which Bennett was driving. Upon seeing Worsley, Bennett came to a quick stop. Worsley subsequently swerved his bicycle into the right lane, where he was then hit by Folston, who had maneuvered into that lane to avoid hitting Bennett's vehicle. Tragically, Worsley died as a result of injuries sustained when he was struck by Folston's vehicle.

McBride, as Administrator of Worsley's estate, filed a simple negligence² claim against Bennett and Folston, individually and as employees of the City of Norfolk, seeking damages for Worsley's wrongful death as a result of their misconduct. Bennett and Folston filed special pleas in bar on the grounds of sovereign immunity. After hearing testimony from Bennett and Folston at an ore tenus hearing, the trial court sustained the special pleas in bar. The trial court held that Bennett and Folston were entitled to sovereign immunity because they had exercised discretion in determining whether and how to respond to the dispatch.

McBride appeals.

II. ANALYSIS

The issue of whether a municipal employee is entitled to sovereign immunity is a question of law that we review de novo. City of Chesapeake v. Cunningham, 268 Va. 624, 633, 604 S.E.2d 420, 426 (2004). Although we review the trial court's decision de novo, we also recognize that, when evidence is presented “on [a] plea ore tenus, the circuit court's factual findings are accorded the weight of a jury finding and will not be disturbed on appeal unless they are plainly wrong or without evidentiary support.” Hawthorne v. VanMarter, 279 Va. 566, 577, 692 S.E.2d 226, 233 (2010).

Where a municipal employee is charged with simple negligence, this Court has established a four factor test for determining whether sovereign immunity applies. James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864, 869 (1980). These factors are: (1) the nature of the 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. Id. In the present case, only the fourth factor is at issue.

Recognizing that “[v]irtually every act performed by a person involves the exercise of some discretion,” James, 221 Va. at 53, 282 S.E.2d at 869, this Court has explained that there are additional considerations involved in assessing the use of judgment and discretion in driving situations. With regard to the fourth factor, this Court has explained that “[t]he defense of sovereign immunity applies only to acts of judgment and discretion which are necessary to the performance of the governmental function itself.” Heider v. Clemons, 241 Va. 143, 145, 400 S.E.2d 190, 191 (1991). In situations involving the exercise of judgment and discretion by government employees while driving, we look to whether the means of effectuating the applicable government function involves “ordinary driving in routine traffic” versus driving that requires a “degree of judgment and discretion beyond ordinary driving situations in routine traffic.” Friday–Spivey v. Collier, 268 Va. 384, 390–91, 601 S.E.2d 591, 595 (2004). Sovereign immunity attaches in the latter situation, but not in the former. Id.; Colby v. Boyden, 241 Va. 125, 129, 400 S.E.2d 184, 187 (1991).

In further refining the analysis applied in determining the types of driving to which sovereign immunity attaches, this Court has acknowledged that “[u]nlike the driver in routine traffic, [a government employee in an emergency situation] must make difficult judgments about the best means of effectuating the governmental purpose by embracing special risks.” Colby, 241 Va. at 129–30, 400 S.E.2d at 187. When embracing special risks, government employees are necessarily called upon to make “split-second decisions balancing grave personal risks, public safety concerns, and the need to achieve the governmental objective.” Id. Such split-second decisions may lead to negligent acts, which can result in death or serious injury, as the present case demonstrates. At the same time, the failure to make such split-second decisions could similarly result in death or serious injury, and one of the purposes served by sovereign immunity is to “eliminate[ ] public inconvenience and danger that might spring from officials being fearful to act.” Messina v. Burden, 228 Va. 301, 308, 321 S.E.2d 657, 660 (1984). Therefore, our jurisprudence is clear that, in the context of driving a vehicle, whether the act in question involves the requisite exercise of discretion such that sovereign immunity applies depends on whether that act embraces “special risks” in order to effectuate a governmental purpose.

Applying this standard, we have recognized that sovereign immunity applies to an officer engaged in vehicular pursuit, Colby, 241 Va. at 130, 400 S.E.2d at 187, or a firefighter responding to a car fire, National Railroad Passenger Corp. v. Catlett Volunteer Fire Co., 241 Va. 402, 413–14, 404 S.E.2d 216, 222 (1991), but does not apply to a deputy serving judicial process, Heider, 241 Va. at 144–45, 400 S.E.2d at 190–91, or a firefighter engaged in “ordinary driving in routine traffic” while responding to a nonemergency, “public service call,” Friday–Spivey, 268 Va. at 390, 601 S.E.2d at 594. In each case, the application of sovereign immunity turned on whether a government employee exercised judgment and discretion in determining what actions to take, whether the actions taken were necessary to effectuate a governmental purpose and whether those actions inherently required them to embrace “special risks.”

In cases like the present one, the proper application of sovereign immunity should not be based upon a court second-guessing a split-second decision made by a government employee effectuating a governmental function by embracing special risks. If that were the case, sovereign immunity would be rendered meaningless. Rather, the proper application of sovereign immunity requires a court to make an objective determination as to whether the decision made and the actions taken pursuant thereto were necessary to the performance of a governmental function and embraced special risks. In other words, the application of sovereign immunity in a case involving the operation of a motor vehicle by a government employee is an objective determination considered in light of all the circumstances including the government employee's assessment³ of the situation. Nonetheless, the test is objective in nature. The driver's evaluation of the situation must be objectively reasonable to permit the application of sovereign immunity.

In the present case, Bennett and Folston determined that it was necessary for them to respond to the domestic disturbance call in an emergency manner and proceeded to do so. In so doing, Bennett and Folston exercised their judgment and discretion. See Colby, 241 Va. at 130, 400 S.E.2d at 187 (recognizing that “[t]he exercise of discretion is involved even in the initial decision to undertake [a particular course of action]”). Furthermore, determining the proper response to a criminal act (e.g., a domestic disturbance) and implementing that response clearly involve the...