Summary
Supreme Court of Virginia held sovereign immunity did not protect the trash truck driver
City was immune because trash collection is a governmental function
Driver was engaged in ordinary driving, not active trash collection, at the time of the crash
Case against the driver was remanded for trial
Sovereign immunity did not protect a city trash truck driver because they were not performing a governmental function when they collided with another vehicle after running a stop sign, the Supreme Court of Virginia has held.
Reversing the circuit court’s rulings, the Court of Appeals of Virginia held that sovereign immunity did not protect the driver or the city after concluding that the driver was engaged in normal driving at the time of the accident.
Writing for the court, Justice Stephen R. McCullough said the appeals court erred by holding that the city was not protected by sovereign immunity because trash removal was a governmental function which promoted public health and comfort.
However, the court affirmed that immunity did not protect the driver who “testified to driving ‘normally’ at the time of the accident when he proceeded through a stop sign without stopping, causing this accident.”
“At the time of the collision, the truck was not going from house to house picking up trash cans,” McCullough said. “It was entering an intersection.”
The court remanded the case against the driver for trial in Ellis v. Jolley (VLW 025-6-029).
The collision
While driving a trash truck for the city of Chesapeake, Jason Ellis proceeded through a stop sign without stopping and collided with Taylor Jolley’s vehicle. In response to Jolley’s negligence suit, the city filed a plea in bar that sovereign immunity protected it and the driver.
The circuit court sustained the plea in bar, holding that both the city and Ellis were protected by sovereign immunity. But the Court of Appeals reversed, holding that sovereign immunity did not bar the action against either the city or Ellis.
This appeal followed.
Governmental function
Sovereign immunity protects municipalities from tort liability only in their performance of governmental functions, rather than proprietary functions, McCullough explained.
“When exercising its governmental powers, ‘a municipal corporation is held to be exempt from liability for its failure to exercise them, and for the exercise of them in a negligent or improper manner,’” the justice said, citing Niese v. City of Alexandria.
Here, the function at issue – the removal of trash – was found to be a governmental function because it promoted public health and comfort. Therefore, the court held that the city was immune from liability for negligence in performing or in failing to perform that function.
“In stating that the City does not benefit from sovereign immunity, the Court of Appeals appears to conflate the sovereign immunity of the government employee and that of the City,” McCullough opined.
“The City’s immunity does not hinge on whether its employee derivatively benefits from sovereign immunity,” the justice clarified. “The city is immune because trash collection is a governmental function.”
Ordinary driving
To determine whether a governmental employee may share in their employer’s immunity, courts employ a four-factor test examining the nature of the function performed, the extent of the government’s interest and involvement in the function, the degree of governmental control and direction, and whether the act in question involved the exercise of discretion and judgment.
Only Jolley’s exercise of discretion and judgment in driving the trash truck was at issue in this case. McCullough noted that this was not the first time the court had to determine whether sovereign immunity applied to a driver, pointing to McBride v. Bennett.
“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,’” the McBride court held.
“‘Sovereign immunity attaches in the latter situation, but not in the former,’” McCullough pointed out. “In addition, the fact that a governmental employee has received ‘specialized training’ to operate ‘a special or heavy duty vehicle’ is not ‘a controlling factor.’”
Applying that standard, the McBride court held that an officer engaged in vehicular pursuit or a firefighter responding to a car fire was protected by sovereign immunity, but a deputy who had completed serving process and was driving under ordinary conditions was not immune.
“Likewise, a firefighter who was engaged in ‘ordinary driving in routine traffic’ while responding to a nonemergency ‘public service call’ was not protected by sovereign immunity,” McCullough wrote.
Two school bus cases – Wynn v. Gandy and Linhart v. Lawson – further illustrated the standard.
In Wynn, the court held that a school bus driver could be held liable when he was engaged in simply operating the bus while approaching the place where he would embark the children.
However, the Linhart court found that a school bus driver was entitled to immunity because the act of transporting school children – in that case, special needs students – involved discretion and judgment.
“Although we did not elaborate on this point in the [Linhart] opinion, it stands to reason that once school children are on the bus, particularly special needs students, the driver must continuously monitor the children on the bus and pay attention to the traffic on the road,” McCullough noted.
No immunity
The court acknowledged that trash truck drivers may engage in ordinary driving but later be called upon to drive in situations that involve special risks arising from their governmental function or must make use of split-second judgment and discretion to perform that function.
“Slowing down to pick up a trash can, maneuvering around obstacles to reach the can or using the joystick to pick up a trash can, are a few examples of conduct that would involve special risks or the use of judgment or discretion,” McCullough said.
But in this case, Ellis testified to driving normally at the time of the accident when he caused the accident with Jolley by proceeding through a stop sign without stopping. Ellis was not going from house to house picking up trash cans when he entered the intersection.
“There was no trash can in the intersection, and no evidence even suggests that the manner in which Ellis entered the intersection was affected by his garbage collection responsibilities,” the justice pointed out.
Thus, the court found that sovereign immunity did not apply to Ellis’s actions at the time of the collision with Jolley.
And because the facts were not in dispute, the city was unable to persuade the court to defer to the circuit court’s factual findings.
“The testimony established that the driver of the trash truck could encounter special risks and, further, that at times he was required to exercise judgment and discretion beyond ordinary driving,” McCullough said.
“However, here, the evidence also established that when the driver ran through the stop sign, he was not doing any of those things; rather, he was engaged in normal driving,” the justice wrote.
Nor was the court convinced by the city’s reliance on Stanfield v. Peregoy, in which a snow-plow driver was found to be immune from claims arising from an accident caused while actively spreading salt on a road.
“The outcome [in Stanfield] did not depend on whether the driver was on his assigned route,” McCullough asserted. “Instead, we emphasized that the combination of ‘driving and spreading salt’ formed ‘an integral part of the governmental function’ at issue. The snow-plow driver was therefore not engaged in “‘“the simple operation” of the truck “in routine traffic.”’”
