Virginia Sovereign Immunity: Ministerial Acts – a Lawyer’s Exception (II)
This is the third in the five-part series from the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It continues the ministerial act exception to Virginia sovereign immunity.
Heider and Friday-Spivey have articulated and promoted the ministerial act exception to sovereign immunity, such that it increasingly has gained traction in the circuit courts throughout the Commonwealth. Not surprisingly, much of their progeny are cases about the ministerial act of driving. E.g., Lake, supra (law enforcement officer driving to suspected homicide scene in Prince George); Baker, supra (game warden driving on patrol for potential law breakers in Fauquier); Ferro, supra (social worker driving transport of an upset teenager in Prince William); Howard, supra (dump truck operator driving route in Richmond); Daddio, supra (fire fighter driving to station for fire call in Loudoun); and Diaz, supra (unspecified employee driving in Norfolk). However, various other cases exemplify the breadth of the ministerial act doctrine, including notably in circumstances apparently presenting more arguable judgment and discretion than the matter sub judice. E.g., Ford, supra (Commonwealth doctor leaving gauze in wound); Gray, supra (Commonwealth nurse placing line in wrong blood vessel); Habib, supra (Commonwealth transportation inspectors failing to correct defective roadway); MFC, supra (Commonwealth special agent destroying explosives); and Yassa, supra (City zoning administrator approving plot plan). In Gagnon, the brain injury victim asserts that Defendant Assistant Principal Burns failing to call the security officers as he needed and assured patently is a ministerial act.
In Ford, a 2002 malpractice case, the patient alleged that the defendant Commonwealth doctor negligently left infectious gauze in his hip would by “failing to fully explore the wound to remove foreign objects during dressing changes; by failing to suspect and search for a foreign body when the plaintiff showed signs of infection; and by failing to identify the hip wound as the site of infection”. 58 Va. Cir. at 429. Rappahannock County Circuit Court properly focused on the particular act in question (rather than the actor’s general position), citing James, Messina, and Heider; and overruled the plea in bar.
“While it may be said that providing health care services necessarily involves the exercise of some discretion, such discretion may be so inconsequential as to be of little significance when considering a grant of immunity to the health care provider.” Judge Horne continued in Ford, “the procedure that gave rise to the instant action involves a routine medical procedure. For purposes of the analysis, the Court determines based on the experience of Dr. Danisa, that this was a ministerial act not requiring the exercise of judgment and discretion.” Id. at 331-432.
In Gray, a 1996 malpractice case, Commonwealth nurses allegedly inserted a medication line into the wrongful blood vessel. Richmond Circuit Court properly focused on the particular act in question (instead of the actors’ general positions), considering James and citing Heider.
“While it is clear that nurses very often use judgment and discretion in their duties day-to-day,” observed Judge Hughes in Gray, “[p]lacing the line in the wrong blood vessel is a rather simple, direct act which appears ministerial and as such is not entitled to protection by sovereign immunity.” 40 Va. Cir. at 422. Accordingly, he denied the plea in bar.
In Habib in 1991, Commonwealth transportation inspectors had notice of a defective road condition, could have repaired it within a day or two, and only had “to order that the repairs be done,” 25 Va. Cir. at 453; but did nothing to repair or even warn. Id. at 455. Fairfax Circuit Court correctly focused on the particular act in question (versus the actor’s general positions), citing James and following First Va. and Heider; and overruled pleas of sovereign immunity.
“While the Defendants may have certain discretionary responsibilities in connection with their employment, their failure to act in this case had nothing to do with the exercise of discretion. * * * The failure to act here involved no exercise of discretion.” Id. at 454. Finding their failure to act controlled by the ministerial act doctrine, Judge Williams in Habib concluded the defendants were not entitled to sovereign immunity. Id. at 454-455.
Habib notes “the Supreme Court has not applied the four part analysis to [of James] to cases where ministerial acts were involved. See, First Virginia Bank-Colonial.” Id. A court finding of ministerial act is dispositive of the analysis.
In MFC in 1986, a state police special agent destroyed dynamite by burning instead of detonating it, contrary to protocol. 6 Va. Cir. at 355. Lee County Circuit Court correctly focused on the particular act in question (in lieu of the actor’s general position), applying James and citing Messina.
“While the performance of every duty involves a certain degree of judgment and discretion, Foster’s destruction of the explosives was primarily ministerial requiring adherence to established guidelines and procedures. * * * His duties were primarily ministerial involving little or no discretion.” Id. at 356. Judge Fugate concluded in MFC, “In the Court’s opinion, the defendant negligently performed ministerial acts and for the reasons set forth above should not be entitled to sovereign immunity.” Id. at 357.
In Yassa in 1984, the defendant city zoning administrator “erroneously approved the plot even though it clearly violated the setback requirements established in the City Code.” 3 Va. Cir. at 192. Alexandria Circuit Court appropriately focused on the particular act in question (not the general position of the actor), following James and citing First Va.; and overruled the demurrer on sovereign immunity.
“The Supreme Court of Virginia has held . . . that an act is no less ministerial because an officer has to determine the existence of facts which make it necessary for him to act,” emphasized Judge Grenadier in Yassa. “The Court is of the opinion that in approving the plot plan the defendant was engaged in a purely ministerial function, and if he is negligent in the performance of that function, he is not covered by the cloak of sovereign immunity, and is answerable to the plaintiff for whatever damages proximately result.” Id. at 192.
