Messina v. Burden

• Decision Date: 12 October 1984
• Docket Number: 820299,Nos. 811485,s. 811485
• Citation: 321 S.E.2d 657,228 Va. 301
• Parties: , 20 Ed. Law Rep. 1255 Frank MESSINA v. William W. BURDEN. Leonard ARMSTRONG v. Dennis R. JOHNSON. Record
• Court: Virginia Supreme Court

Page 657

321 S.E.2d 657

228 Va. 301, 20 Ed. Law Rep. 1255

Frank MESSINA v. William W. BURDEN.

Leonard ARMSTRONG v. Dennis R. JOHNSON.

Record Nos. 811485, 820299.

Supreme Court of Virginia.

Oct. 12, 1984.

H. Joel Weintraub, Norfolk (Decker, Cardon, Weintraub, Thomas & Hitchings, Norfolk, on brief), for appellant in No. 811485.

J.J. O'Keefe, III, Chesapeake (Outland, Gray, O'Keefe & Hubbard, Chesapeake, on brief), for appellee in No. 811485.

Blair D. Howard, Alexandria (Howard & Howard, P.C., Alexandria, on brief), for appellant in No. 820299.

Charles G. Flinn, Cty. Atty., for appellee in No. 820299.

Present: CARRICO, C.J., COCHRAN, POFF, COMPTON, STEPHENSON and THOMAS, JJ., and HARRISON, Retired Justice.

THOMAS, Justice.

These two appeals present the same issue from slightly different perspectives. Both appeals concern whether the doctrine of sovereign immunity extends to government employees such as those involved in these cases. They differ in that William W. Burden, the appellee in the first appeal, was an employee of Tidewater Community College, part of the Virginia Community College System, and thus, in essence, an employee of the State, while Dennis R. Johnson, the appellee in the second appeal, was an employee of Arlington County. These appeals give us the opportunity to reexamine the complex law of sovereign immunity as it has evolved in the Commonwealth.

I. Background

A. Messina

In the first appeal, Frank Messina was injured when he tripped and fell on a stairway located behind the stage of the College Theater on the Frederick Campus of Tidewater Community College. At the time of his injury Messina was an actor in a play being performed at the theater.

Messina first sued the community college. However, that action was nonsuited and an amended motion for judgment was filed against William W. Burden, the college's superintendent of buildings.

In the amended motion for judgment, Messina made several allegations against Burden including the following:

On or about March 11, 1979, the Defendant, William W. Burden, was the Superintendent of Buildings for the Defendant Tidewater Community College, was its employee, and was acting within the scope of his employment; and as the Superintendent of Buildings it was his duty to maintain and supervise the maintenance of the buildings of the Tidewater Community College....

Burden filed a demurrer in which he contended that the action against him was barred by the doctrine of sovereign immunity. The court sustained the demurrer with leave to Messina to amend.

Messina filed a second amended motion for judgment. This time Messina was careful not to set forth Burden's job title. Moreover, in his new pleading, Messina did not allege that Burden was acting within the scope of his employment or that he had supervisory responsibilities. In response, Burden filed a plea of sovereign immunity. The court sustained the plea.

On appeal, Messina contends that the trial court erred in two particulars: first by sustaining the demurrer to the first amended motion for judgment, second by sustaining the plea to the second amended motion for judgment.

B. Armstrong

Leonard Armstrong was injured when he stepped on a defective manhole cover located in a street in Arlington County. Armstrong sued Dennis R. Johnson and, in his motion for judgment, alleged that Johnson was "Chief of the Operations Division of the Department of Public Works in Arlington County, Virginia." Johnson filed a special plea of immunity and a demurrer. Thereafter, the parties entered into a stipulation of facts in which they agreed that at the time of Armstrong's injury, Johnson was Chief of the Operations Division as alleged. They further agreed that there were eleven sections within Johnson's division and that he administered all of them. They also agreed that Johnson's work required the application of engineering knowledge and skills to solve highway construction and maintenance problems. They agreed further that Johnson had "wide latitude in exercising independent judgment, subject only to administrative review by the Director of the Department of Transportation."

The trial court sustained the demurrer and the plea of immunity. In a memorandum opinion, the trial court first stated that Arlington County shared the sovereign immunity of the Commonwealth, then reasoned that the county "is not a 'local government agency' as that term has been used in several of the decisions denying immunity to employees of such agencies." The trial court also stated that Johnson's duties were "analogous to the 'executive officers' in Lawhorne v. Harlan [214 Va. 405, 200 S.E.2d 569 (1973) ] who were charged with the operation of a vast hospital complex." The court noted further that the charge against Johnson was one of simple negligence, not gross negligence or intentional misconduct.

On appeal, Armstrong contends that the trial court made two errors. He says the court erred in holding that Johnson "while acting as Chief ... of Operations ... was not acting as an employee of a local government agency." He also says the trial court erred in sustaining Johnson's demurrer and plea.

II. Discussion

A. Issues Common to Both Appeals

At least two common themes run through both appeals. One theme is that the doctrine of sovereign immunity has been so eroded that it has lost its vitality and should be done away with completely by this Court. The other theme concerns the difficulty in determining which government employees are entitled to immunity.

1. Vitality of the Doctrine

Contrary to the suggestions of the appellants, the doctrine of sovereign immunity is "alive and well" in Virginia. Though this Court has, over the years, discussed the doctrine in a variety of contexts and refined it for application to constantly shifting facts and circumstances, we have never seen fit to abolish it. Nor does the General Assembly want the doctrine abolished. In 1981, the General Assembly enacted the Virginia Tort Claims Act. Had it so chosen, the legislature could have used that act as a vehicle to abolish sovereign immunity. It did just the contrary. In a 1982 amendment to the Act the General Assembly provided as follows:

[N]or shall any provision of this article ... be so construed as to remove or in any way diminish the sovereign immunity of any county, city, or town in the Commonwealth.

Code § 8.01-195.3 (emphasis added). Thus, the complexity that exists in the law of sovereign immunity cannot be eliminated by the simple expedient of doing away with the doctrine by judicial fiat.

2. Determining Employee Immunity

The more important question raised by the two appeals is under what circumstances an employee of a governmental body is entitled to the protection of sovereign immunity. In order to resolve this question, we must focus upon what the doctrine of sovereign immunity was meant to achieve.

One of the most often repeated explanations for the rule of state immunity from suits in tort is the necessity to protect the public purse. See Hinchey v. Ogden, 226 Va. 234, 307 S.E.2d 891 (1983). However, protection of the public purse is but one of several purposes for the rule. In Board of Public Works v. Gannt, 76 Va. 455 (1882), we said that sovereign immunity is a privilege of sovereignty and we then explained that without the doctrine there would exist inconvenience and danger to the public in the form of officials being fearful and unwilling to carry out their public duties. We also stated that without sovereign immunity public service might be threatened because citizens might be reluctant to take public jobs. We said further that if the sovereign could be sued at the instance of every citizen the State could be "controlled in the use and disposition of the means required for the proper administration of the government." 76 Va. at 462 (quoting The Siren, 74 U.S. (7 Wall.) 152, 154, 19 L.Ed. 129 (1868)).

More recently, in Hinchey, we rejected the idea that protection of the public purse is or ever was the sole basis of the doctrine. There, we said that while maintenance of public funds is important, another equally important purpose of the rule is the orderly administration of government. In Hinchey, we relied upon 72 Am.Jur.2d States, Territories, and Dependencies § 99, which described sovereign immunity "as a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities." 226 Va. at 240, 307 S.E.2d at 894.

From these several sources it is apparent that the doctrine of sovereign immunity serves a multitude of purposes including but not limited to protecting the public purse, providing for smooth operation of government, eliminating public inconvenience and danger that might spring from officials being fearful to act, assuring that citizens will be willing to take public jobs, and preventing citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation. Given the several purposes of the doctrine, it follows that in order to fulfill those purposes the protection afforded by the doctrine cannot be limited solely to the sovereign. Unless the protection of the doctrine extends to some of the people who help run the government, the majority of the purposes for the doctrine will remain unaddressed. For example, limiting protection to the State itself does nothing to insure that officials will act without fear. If every government employee is subject to suit, the State could become as hamstrung in its operations as if it were subject to direct suit. The reason for this is plain: the State can act only through individuals. See Sayers v. Bullar, 180 Va. 222, 22 S.E.2d 9 (1942).

At least twice in the past, we have acknowledged the importance of affording immunity to certain government employees. In one case we approached the...