The Virginia Department of Transportation is not entitled to blanket sovereign immunity over alleged negligent intersection maintenance in Fairfax County, a judge of the Fairfax County Circuit Court held.
VDOT, along with several individual VDOT employee defendants, filed a plea in bar arguing sovereign immunity shielded the defendants from a lawsuit filed by plaintiff Agyapomma Awuah, who was rendered quadriplegic after being injured in a traffic collision at an intersection Awuah claimed was negligently maintained.
Fairfax County Circuit Court Judge Patrick M. Blanch overruled most of the claims in the plea in bar. The judge sustained VDOT’s plea in bar as to allegations of failure to repaint the intersection lanes, while denying the plea in bar on allegations of failure to clear vegetation.
“[T]his Court finds a different distinction dispositive: whether the
complained-of neglect could have been cured without the expenditure of the government’s funds,” Blanch wrote. “The record is silent concerning the cost to VDOT of repainting the intersection and it is reasonably inferable from the facts stated in the Complaints that such repainting would involve a decision by VDOT to expend public funds.”
However, Blanch noted that the facts of the case showed that “it would have cost VDOT nothing to use their on-call third party contractors to remove the vegetation obstructing sightlines at the intersection,” creating the distinction between the claims.
Blanch wrote the circuit court’s opinion in Awuah v. Virginia Department of Transportation (VLW 026-8-010) on March 24.
Counsel for the parties in this case did not respond to requests for comment by deadline.
Traffic accident
In August 2021, Awuah was driving westbound on Monument Drive in Fairfax County, while another driver was proceeding southbound on Fields Brigade Road, towards where the two roads intersect.
The other driver stopped at a stop sign at the intersection, but “edged forward into the crosswalk” due to overgrown vegetation and unauthorized signage obstructing her view. She moved into the right turn lane before entering the intersection, pulling into Awuah’s path on Monument Drive. Per court documents, Awuah “drift[ed] to the right when approaching the intersection” due to “worn and obliterated” lane markings.
The subsequent collision rendered Awuah quadriplegic.
Monument Drive and Fields Brigade Road are both “secondary roads,” meaning VDOT and the commonwealth have a responsibility to maintain the streets. VDOT had noted the condition of the intersection was “very poor” for years prior to the accident, and the opinion noted that VDOT “was on notice about this hazardous scenario” due to complaints, and a road condition video taken eight months prior to the crash showed faded lane markings and overgrown vegetation.
Per the opinion, the evidence in the complaints taken as true determined that the intersection was hazardous due to “visual obstructions prevent[ing] drivers from seeing traffic coming across the intersection” and faded lane markings that caused traffic to veer close to cars trying to enter the intersection from Fields Brigade Road.
Awuah filed suit, alleging VDOT and several VDOT employees are liable for her injuries, claiming negligence, gross negligence and maintaining a nuisance.
The defendants filed a plea in bar claiming sovereign immunity.
VDOT
Writing that the analysis between VDOT and its employees is “not identical,” Blanch began the opinion by addressing the claims related to VDOT as an agency of the commonwealth.
The judge noted the controlling statute, the Virginia Tort Claims Act, waives the commonwealth’s immunity for “damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth … if a private person, would be liable to the claimant for such damage.”
This statute addresses the precedent set in Maddox v. Commonwealth, where it was decided that “the Commonwealth and its agencies are immune from liability for the tortuous acts of their agents, employees, and servants absent express statutory or constitutional provisions waiving immunity.”
“Maddox … left open the question of whether the Commonwealth’s failure to maintain a way, as opposed to an error in design, exposes the Commonwealth to liability,” Blanch wrote.
The defendants in this case relied primarily on arguments based around the 2024 decision in Canter v. Commonwealth. In Canter, the plaintiff was injured when his tractor-trailer flipped after driving through a pool of standing water on the interstate. The plaintiff in Canter alleged VDOT had known of the hazard for years.
However, Blanch wrote that Canter differed, as VDOT placed orange and white barrels near the area where water was known to pool.
Ultimately, the Court of Appeals of Virginia determined in Canter that “the VTCA and the corresponding caselaw permit[s] the Commonwealth and its ‘agents, employees and representatives’ … to enjoy sovereign immunity for claims asserting gross negligence for failing to maintain the Interstate Highway System in Virginia.”
The use of “permits” and not saying the commonwealth “always enjoys such immunity” was key to the present case.
“On one hand, Awuah presents a case of complete failure to address an ongoing and known safety problem,” Blanch wrote. “On the other hand, Canter was about the Commonwealth exercising its legislative function by choosing a solution to a known safety problem, even if that solution proved woefully inadequate.”
Blanch ultimately found the distinction “unavailing because like the legislative decision to act, or not act, or ‘the failure to exercise the power or … its improper exercise’ is also legislative in nature,” quoting Maddox.
Instead, Blanch looked to the expenditure of government funds as the dispositive distinction between Awuah’s claims. On repainting the intersection markers, “the record is silent concerning the cost to VDOT.”
As such, Blanch found it reasonable to infer that a decision to repaint the markers would involve a decision to expend public funds by VDOT, meaning VDOT “enjoys sovereign immunity as to the repainting allegations.”
Sovereign immunity did not extend to the vegetation obstruction claims, as the complaints established that VDOT could have cleared the vegetation without cost.
Employee defendants
In a footnote, Blanch wrote that “upon careful consideration of the arguments of counsel in this case, this Court is compelled by the fundamental principles of stare decisis to regard as non-binding dicta the portion of Canter holding that the Commonwealth’s agents, employees and representatives enjoy sovereign immunity for claims of gross negligence for failure to maintain the Interstate highway system.”
Blanch evaluated the employee defendants’ claims of sovereign immunity only on the repainting claim, as that was where VDOT was found to enjoy sovereign immunity.
Pursuant to precedent in James v. Jane, the circuit court conducted an individual test to determine if each employee enjoys sovereign immunity based on the four factors from the case: the nature and function the employee performs, the extent of the government entity’s interest and involvement in the function, the degree of control and direction exercised by the entity over the employee and whether the alleged act involved the exercise of judgment and discretion.
“Upon examination of the extremely limited information available about each of the VDOT employee defendants contained in Awuah’s Complaints, the plea in bar of the VDOT employees asserting sovereign immunity in this case must be overruled because none of the employee defendants met their burden of proof under James v. Jane,” Blanch wrote.
The circuit court thus overruled the VDOT employees’ plea in bar in its entirety.
Awuah v. Virginia Department of Transportation
THE ISSUE Are VDOT and its employees shielded by sovereign immunity from a plaintiff’s claim of negligent intersection maintenance?
DECISION No (Fairfax County Circuit Court)
LAWYERS Michael H. Brady and P. Thomas DiStanislao of Whiteford, Taylor & Preston, Richmond (plaintiff) Alexander Francuzenko and Philip C. Krone of Dunn, Craig & Francuzenko, Fairfax (defendants)
“[T]his Court finds a different distinction dispositive: whether the complained-of neglect could have been cured without the expenditure of the government’s funds.” — Judge Patrick M. Blanch, Fairfax County Circuit Court
Cases Mentioned
