Virginia Sovereign Immunity: Gross Negligence – a Lawyer’s Exception
This concludes the five-part series on Virginia sovereign immunity pleaded in the brain injury case of Gregory Joseph Gagnon, et al. v. Travis Burns, et al., No. CL08-572 in Gloucester County Circuit Court. It covers the gross negligence exception, which the victim Plaintiff also was alleged.
In a 2003 school board employee case, the Virginia Supreme Court reversed and remanded the trial court’s judgment that a student plaintiff’s allegation for gross negligence against his football coach was factually insufficient as a matter of law. In Koffman, “gross negligence” was defined as “that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another].” 265 Va. at 15. “Because reasonable persons could disagree on this issue” of alleged gross negligence in the tackling demonstration, the Virginia Supreme Court ruled in Koffman that “a jury issue was present”. Id. at 16.
Even Green v. Ingram, 269 Va. 281, 291-292 (2005), relied upon by the Assistant Principal in Gagnon, found plaintiff raised a jury question on the sovereign immunity issue of gross negligence, noting that the difference between gross negligence and ordinary negligence (versus recklessness willfulness or wantonness) simply was “one of degree” (versus a “matter of kind”). doing absolutely nothing at all after unequivocally assuring that he would alert security for the impending altercation about which he warned and his protection was sought presents a prima facie case of gross negligence to be decided by a jury.
The Assistant Principal in Gagnon claims that “Banks v. Sellers [ 224 Va. 168 (1984)] concerned facts almost identical to the facts alleged in this case”. But the brain injury victim in Gagnon asserts that Banks actually is distinguishable on multiple grounds.
First, Banks was handed down before the seminal opinions of the Virginia Supreme Court in Koffman, Friday-Spivey, Heider, and Lentz, when in general the then-evolving law of sovereign immunity still was not settled completely, when in particular the focus was on the judgment and discretion of the general position versus on the specific wrongful act as it is now. Second, Banks involved the “principal,” not an “assistant principal” as in the matter sub judice. Third, Banks only alleged simple negligence, not gross negligence as in the matter sub judice. Fourth, Banks involved a sharply divided Court, with three dissents and a “concur in result” as the swing vote; times in general and schools in particular unfortunately have changed materially for the worse in the 27 years since Banks was decided, school administration of necessity now routinely involves physical safety measures metal detectors, on-premises security, etc. as in the matter sub judice; and Taboada v. Daly Seven, Inc., 271 Va. 313 (2006) on reh. 273 Va. 269 (2007) calls into question the continuing viability of Banks even on its own facts.
Fifth, Banks expressly was decided “under the circumstances of [the] case,” which differed materially from the matter sub judice. In addition to foregoing differences, in Banks there was only a general allegation that defendants “failed to provide a safe environment for her”. 224 Va. at 168. Contrarily, in Gagnon there are specific allegations that the Assistant Principal responsible for student discipline was warned and solicited about an impending altercation with a particular student, and affirmatively assured he would intervene by alerting security on hand. The brain injury victim in Gagnon asserts contrary to Banks, those markedly different specific factual circumstances at bar gave rise to a ministerial duty to act, and the utter failure to act at all constituted gross negligence, as alleged. . Cf., Didato v. Strehler, 262 Va. 617, 628-629 (2001)(holding “one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully”).
The recent reported application of Banks to a principal in Kern v. Allee, 2006 Va. Cir. LEXIS 19 (Nelson Feb. 8, 2006) supports that Banks does not insulate all principals in all circumstances. The published opinion in Kern denied a plea of sovereign immunity and overruled a demurrer on allegations of gross negligence by a middle school principal, Johnson. “[D]ue to the allegations that [Principal] Johnson knew of the prior alleged assault on another female student at the middle school [and did nothing], there are sufficient allegations to constitute ‘an utter disregard of prudence amounting to a complete disregard of safety by Johnson.” Id. at * 7 (emphasis added).
B.M.H v. The School Board of the City of Chesapeake, Virginia, 833 F.Supp. 560 (E.D. Va. 1993)(Virginia law) is on point. “The victim student in B.M.H. reported another student’s threat of attack” to “Defendant, Singleton, who was apparently the fifth-period history teacher. Defendant Singleton then made Defendant Webb, a fellow teacher, aware of the threat made to B.M.H. Subsequently, . . . Singleton and Webb failed (collectively the ‘teachers’), to take action to discipline student H. for his remark of to prevent him from actually accomplishing it, even though they had stated an intention to do so.” Id. at 562. Thereafter, B.M.H. was “assaulted by student H on school grounds”. Id.
The defendant teachers in B.M.H. were denied summary dismissal on the grounds of sovereign immunity because the plaintiffs stated a claim for their gross negligence. “The Plaintiffs alleged, though, that the neglect in this instance demonstrates gross negligence on the teacher’s behalf. * * * Construing the allegations of the Amended Complaint most favorably to the Plaintiffs, the Court is not convinced that no claim can be established on those grounds. * * * As far as Court III states a claim against the teachers in their individual capacities for gross negligence, the Court DENIES the Defendants’ Motion to Dismiss.” Id. at 574 (emphasis in original).
In Hawkins v. Pinkerton’s, Inc., 42 Va. Cir. 316, 319 (Petersburg May 27, 1997), cited by the Assistant Principal in Gagnon, the “Court cannot make a determination under [sovereign immunity] at this stage of the proceedings,” and the “Demurrer based on insufficient allegations of gross negligence is overruled”. Likewise, in Daddio v. Ashley, 43 Va. Cir. 283, 286 (Loudoun Sep. 3, 1997), “the issue of gross negligence raised by the evidence is not susceptible to decision on the instant Plea in Bar”. Similarly, in Verry v. Barry, 71 Va. Cir. 318, 321 (Fairfax Jul. 27, 2006), the court ruled “determination of gross negligence is an issue of fact properly decided by a jury,” so the “demurrer as to Court IV is overruled”.
