Messina v. Burden

COCHRAN, J.,

dissenting.

The majority opinion has attempted to lay down a rule of sovereign immunity which reconciles our prior decisions. In my view, the attempt fails because the decisions cannot be reconciled. The result is that the tent of sovereign immunity is now to be stretched to protect from liability far more negligent individuals than ever before. 1 What appears to be the critical test is whether the employee of an immune employer was acting within or without the scope of his employment. The effect of the majority opinion, in my view, is to overrule at least three of our recent decisions on this subject.

In Kellam v. School Board, 202 Va. 252 , 117 S.E.2d 96 (1960) and Crabbe v. School Board and Albrite, 209 Va. 356 , 164 S.E.2d 639 (1968), we held that a school board, in the performance of its duties, was an arm of the Commonwealth and, in the absence of waiver by statute, immune from liability for negligence. In Crabbe , however, we laid down a different rule for a teacher who was employed by a county school board and performing his duties when a pupil in his class was injured in using a power saw. We held that the fact that the teacher was “perform *317 ing a governmental function for his employer” did not exempt him from liability “for his own negligence in the performance of such duties.” 209 Va. at 359 , 164 S.E.2d at 641 .

Twice we have followed Crabbe and held that employees of exempt employers were liable for their own acts of negligence. James v. Jane, 221 Va. 43 , 267 S.E.2d 109 (1980); Short v. Griffitts, 220 Va. 53 , 255 S.E.2d 479 (1979). In Lawhorne v. Harlan, 214 Va. 405 , 200 S.E.2d 569 (1973), a majority relied on the distinction between discretionary and ministerial acts to hold an intern and administrators of a state hospital immune because they exercised discretion in their work. Id. at 407 , 200 S.E.2d at 571-72 . But in James, the court, without overruling Lawhorne , held full-time members of the medical faculty at the same hospital subject to liability for their acts of negligence because they exercised complete discretion in their work. 221 Va. at 52-55 , 267 S.E.2d at 113-14 .

The majority opinion in James repeated the language of Short that in our decisions “[w]e make a distinction between the Sovereign Commonwealth of Virginia and its employees, and a governmental agency, created by the Commonwealth, and its employees.” I do not consider that the use of that language was casual or inadvertent.

In Banks v. Sellers, 224 Va. 168 , 294 S.E.2d 862 (1982), a school’s division superintendent and principal were held to be immune because of the supervisory and discretionary nature of their work. Id. at 172-73 , 294 S.E.2d at 864-65 . But, in Crabbe and Short , immunity had been denied a shop teacher, an athletic director, a coach, and a buildings and grounds supervisor. The Crabbe and Short decisions did not rely on the distinction between discretionary and ministerial functions, as the defendants in those cases clearly exercised discretion by the very nature of their work but were nonetheless subject to liability for negligence. Later decisions relying on this distinction are a clear departure from the Crabbe rule of individual liability.

In the present cases, the majority finds each defendant to be a supervisory employee exercising discretion in his work. 2 This puts the court in the position of endorsing the distinction relied on in *318 Lawhorne and Banks and contravening the clear mandate of Crabbe, Short, and James. Accordingly, I dissent. To immunize employees of local arms or agencies of the state government is to regress from established principles of law. In Short , we held that whether the employees’ duties included supervision, maintenance, and inspection of facilities and whether they breached such duties thereby proximately causing plaintiffs injuries were questions of fact to be decided at trial. 220 Va. at 55 , 225 S.E.2d at 480. Similarly, Messina and Armstrong should be entitled to try the questions whether Burden and Johnson had duties to inspect and maintain the premises under their supervision, whether they breached such duties, and whether their breach proximately caused injuries to their respective plaintiffs.

STEPHENSON, J., joins in this dissent.

I agree that the General Assembly has demonstrated an intent to retain sovereign immunity but I fail to perceive any legislative intent that such immunity be extended beyond any limits heretofore established.

The majority contends that the trial court determined the nature of Burden’s work from the allegations of the first amended motion for judgment, to which a demurrer previously had been sustained. Because Messina did not object to this procedure, the court finds the action to be proper.

*318 There is no express indication in the order that the first amended motion for judgment formed the basis of the decision. The majority’s reliance on Messina’s failure to object to a procedure not apparent on the face of the order appears to me to be unjustified. Furthermore, it is worth noting that counsel did object to entry of the order.