noting that this rule is grounded in several “social *442 policies],” including the need to “prevent[] citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation,” the desire to preserve the public fisc, ensuring the efficient and orderly operation of government, and encouraging government officials to act in the best interest of the state without the threat of being sued
How later courts described this case
- noting that this rule is grounded in several “social *442 policies],” including the need to “prevent[] citizens from improperly influencing the conduct of governmental affairs through the threat or use of vexatious litigation,” the desire to preserve the public fisc, ensuring the efficient and orderly operation of government, and encouraging government officials to act in the best interest of the state without the threat of being sued
- explaining that when a gov- ernment entity enjoys the immunity of the state, courts should treat employees of that entity like state employees “in a proper case”
- listing the four factors considered by courts: (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
- noting that “in applying the James test to employees of other immune governmental entities, the word ‘state’ should be deleted and the proper description of the governmental entity substituted”
Written by the judges who cited it.
Distinguished
Distinguished by Small v. Jackson, 4 Va. Cir. 262 (1985)
Plaintiff argues that Messina is distinguishable on the ground that the causes of action in the two cases arose prior to the enactment of the Act.
The opinion
POFF, J.,
concurring.
I concur in the result, and I have decided to join in the majority opinion in the hope that it will contribute to uniformity in the application of the law of sovereign immunity in this Commonwealth. I must add, however, that I have a somewhat different view of what the law ought to be.
The complexity the majority finds in the case law results mainly from historical confusion over the differences between the doctrine of sovereign immunity and the doctrine of public-servant immunity (sometimes imprecisely labeled “official immunity”). The confusion stems, I believe, from undue reliance upon the truism that government can act only through the acts of its employees.
The two doctrines are akin but different in concept and effect. The doctrine of sovereign immunity, rooted originálly in the tenuous theory that the King of England could do no wrong, finds its most legitimate justification in the right of government to protect its assets, owned in common by the people at large, and to promote the welfare and safety of the body politic by assuring orderly administration of governmental functions.
On the other hand, the primary purpose of the doctrine of public-servant immunity, while related to those underlying the doctrine of sovereign immunity, is to encourage citizens, including those of modest means, to enter government service and, once employed, to carry out their assigned missions responsibly without fear of personal liability for accidental injuries resulting from acts or omissions committed in the exercise of their discretionary powers. Public-servant immunity does not attach merely because the level of government for which the employee works enjoys sovereign immunity.
*315 The rules I suggest would dispense with certain distinctions, invoked in earlier cases, which I consider artificial and illogical. For purposes of the sovereign-immunity analysis, I see no valid reason to distinguish between a county and a city; both administer laws and programs which affect the people’s interests in the integrity of the public purse and the welfare and safety of the body politic. As an examination of the case law will reveal, it is all but impossible, with any degree of consistency, to determine the difference between a governmental function and a proprietary function, and I would abandon the requirement that courts make the attempt. And, while I would grant no immunity from intentional torts to any employee at any level of government, I would abolish the nebulous distinction we have drawn between simple civil negligence and gross civil negligence.
Having in mind the public-policy purposes of the doctrines of sovereign immunity and public-servant immunity, I favor the following rules:
(1) Absent express waiver, the Commonwealth, counties of the Commonwealth, cities chartered by the Commonwealth, and towns incorporated by the Commonwealth are immune from suit arising out of a tort committed in the discharge of a lawful public function.
(2) Departments, agencies, and other public bodies created by any level of government and authorized to exercise a lawful power of that government enjoy the same immunity.
(3) Chief executive officers and legislators at every level of government, and judicial officers, such as judges, magistrates, and commissioners in chancery, are immune from liability for damages arising out of unintentional torts committed within the scope of their employment.
(4) All other employees of every level of government or of a lawful creature of government are immune from liability from damages arising out of unintentional torts committed in the performance of a judgmental or discretionary duty within the scope of their employment, without regard to whether the misfeasance or nonfeasance is simple or gross.
*316 These rules, like those precipitated by the majority opinion, may not be the ideal solution. Government continues to grow in size and power, and the danger of tortious injury to private citizens by government employees expands apace. Some say the legislature should abolish the judge-made doctrine of sovereign immunity, grant absolute immunity to every government employee for every kind of tort arising out of and during the course of his employment, and, applying the rule of respondeat superior, impose liability solely upon the master for the tortious conduct of the servant, with no right of indemnity against the servant.
I would not go so far. Doubtless, such a legislative package would simplify the body of the law for the benefit of legitimate claimants. But it would inevitably tend to curtail an employee’s incentive to perform his duties faithfully, invite frivolous and vexatious litigation, and disrupt the orderly administration of governmental functions, all at the expense of the people.