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Sovereign Immunity in Virginia: How to Slay the Giant

Partner Eugene C. Miller recently led a Team Presentation at the George Mason American Inn of Court, which met at the Antonin Scalia Law School at the George Mason University Arlington Campus. The presentation was on the doctrine of Sovereign Immunity in Virginia.

Sovereign Immunity is a legal doctrine that arose out of English crown immunity where the royal sovereign was historically immune from civil suit or criminal prosecution. Sovereign immunity arose from the “divine right of kings” and was based on the maxim “Rex non potest peccare-the king can do no wrong.” The Commonwealth of Virginia inherited the doctrine through its adoption of the common law of England and it is protected by the United States Constitution. The principle of absolute immunity has mostly been discarded in modern times. In Virginia, it primarily applies to tort actions such as motor vehicle accidents. The main principle is that the State cannot be sued without its permission. The doctrine protects the State, its counties, cities, towns, agencies and employees. Immunity, although mostly inherited through case law, has also been extended by state statutes. The doctrine has also evolved and has been eroded by statutes and court decisions.

The Virginia Tort Claims Act allows suit against the State under certain conditions. And while counties, Cities and Towns mostly retain their immunity, employees may or may not be immune depending on whether they are carrying out governmental functions or are exercising discretion and judgment. The immunity mostly protects acts of simple negligence by a governmental employee but does not protect against gross negligence, willful and wanton or intentional wrongs. A Virginia practitioner must be familiar with all of the facets of sovereign immunity and its exceptions in order to properly represent a victim who has been injured by the actions of the government. It is crucial to identify the responsible government actor as soon as possible as the law requires that detailed notice be given to the particular governmental entity, in some cases as soon as six months after the injury, or the claim can be barred. The law firm of Weiner, Spivey & Miller has experience litigating injury cases against governmental entities arising out of accidents involving postal trucks, school buses and police cars, injuries at public parks, recreation centers, and government buildings, and injuries due to roadway defects, among other cases.

If you have been seriously injured due to the actions of a state, county, city or town employee, or on governmental property, call us at 703-273-9500 as soon as possible for a free consultation.

Maura Weiner