Sovereign Immunity of Counties and Cities in Virginia

Sovereign immunity is a legal doctrine that protects the government from being sued. Sovereign immunity comes from “an axiom of English law that the law ascribes to the king the attribute of sovereignty, and thus, no court can have jurisdiction over him because jurisdiction implies superiority of power.”[i] In Virginia this means that the Commonwealth and its agencies and universities are generally immune from legal claims, unless an express statutory or constitutional provision waives the immunity.[ii] Besides those circumstances in which that immunity has been waived, such as by the Virginia Tort Claims Act, the Commonwealth’s immunity is nearly absolute, and otherwise meritorious claims will be dismissed at the pleading stage.

The Virginia Tort Claims Act (VTCA) waives the Commonwealth’s sovereign immunity and enables plaintiffs to recover money damages for personal injury, wrongful death and property damage against the Commonwealth of Virginia and its agencies.[iii] By its express terms, the VTCA does not include counties, cities or towns in its waiver of immunity.[iv] The VTCA limits recovery to $100,000 per claimant, or the maximum limits of any applicable liability policy, whichever is greater.[v] The claimant must file a notice with the appropriate agency within one year after the cause of action accrued with the appropriate state agency, stating the nature of the claim and the time and place when and where the injury occurred.[vi]

The Virginia Supreme Court has identified many reasons for immunizing the sovereign from suits for money damages:

These purposes include protecting the public purse, ensuring the uninterrupted functioning of government, eliminating any public inconvenience and danger that may result from officials being fearful to act, assuring that citizens will continue to accept public employment, and discouraging individuals from improperly threatening or initiating vexatious litigation.[vii]

Counties are political subdivisions of the Commonwealth and share in its general sovereign immunity.[viii]

The sovereign immunity of cities, on the other hand, is narrower than counties and depends on the kind of activity in which the city was engaged when the conduct occurred:

In Virginia a municipal corporation is clothed with a two-fold function one governmental and the other proprietary. A municipality is immune from liability for failure to exercise or for negligence in the exercise of its governmental functions. It may be liable, just as a private individual or corporation, for the failure to exercise or for negligence in the exercise of its proprietary functions.[ix]

“Governmental functions are powers and duties performed exclusively for the public welfare.”[x] “[W]hen a municipality plans, designs, regulates or provides a service for the common good, it performs a governmental function.”[xi] “In contrast, routine maintenance or operation of a municipal service is proprietary.”[xii] “[W]here governmental and proprietary functions coincide, the governmental function is the overriding factor.”[xiii]

If you think it would be tough to guess which category—governmental versus proprietary functions—a given task would fall into, you are not alone.[xiv] Some activities that have been found to be governmental include:

·      Planning, designing, and laying out roads[xv]

·      Plan and design of sidewalks[xvi]

·      Operation of a fire department[xvii]

·      Ambulance services[xviii]

·      Regulation of traffic through traffic signals[xix]

·      Emergency snow removal services[xx]

·      Garbage removal[xxi]

·      Post-disaster street clean-up[xxii]

Examples of proprietary functions:

·      Routine street maintenance[xxiii]

·      Maintenance of sidewalks[xxiv]

·      Operating a water department[xxv]

·      Operating a utility[xxvi]

·      Operating an airport[xxvii]

·      Operating a flea market

·      Renting real property[xxviii]

·      Operating a public housing authority[xxix]

How a particular function is classified has everything to do with the unique facts of the case and especially whether there is an emergency. In Chiles v. Gray, the Circuit Court denied the Richmond Metropolitan Authority’s special plea of sovereign immunity for the plaintiff’s injuries resulting from negligent snow removal, because the government failed to introduce evidence showing how long the snow had been on the ground. The court reasoned that removing freshly fallen snow is a response to an emergency and therefore a governmental function, but removing old snow is routine and therefore proprietary.[xxx] Similarly, in Burson v. Bristol a special plea of sovereign immunity was denied to firefighters who were engaged in demolishing a burned structure because the building had burned days before and there was no longer an emergency.[xxxi]

The sovereign immunity of government employees in Virginia is even more perplexing than that of counties and cities and is best left for a separate discussion. And there are exceptions to when the VTCA applies,[xxxii] as well as gradations of negligence for which sovereign immunity does not apply.[xxxiii] Each potential claim against the Commonwealth of Virginia, its counties, cities or towns, or their employees must be carefully reviewed for potential sovereign immunity issues. If you have been harmed by the wrongdoing of a city or county employee in Virginia, contact a seasoned Charlottesville and Central Virginia personal injury attorney to evaluate your claim.

Results depend upon factors unique to each case. Hendell Law Firm does not guarantee any result. This article is not legal advice.

©2025 Thomas M. Hendell, PLLC

[i]Canter v. Commonwealth, 82 Va. App. 593, 601-02 (2024) (internal quotation marks omitted).

[ii]Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242, 244, 591 S.E.2d 76, 78 (2004); Patten v. Commonwealth, 262 Va. 654, 658, 553 S.E.2d 517, 519 (2001); Melanson v. Commonwealth, 261 Va. 178, 181, 539 S.E.2d 433, 434 (2001).

[iii] Va. Code § 8.01-195.3.

[iv]Id.

[v]Id.

[vi] Va. Code § 8.01-195.6.

[vii]Ligon v. County of Goochland, 689 S.E.2d 666, 668 (Va. 2010).

[viii]Id.; Mann v. Bd. Of Supervisors of Arlington County, 199 Va. 169, 174 (1957).

[ix]Fenon v. City of Norfolk, 203 Va. 551, 555, 125 S.E.2d 808, 811 (1940).

[x]City of Chesapeake v. Cunningham, 604 S.E.2d 420 (Va. 2004).

[xi]City of Chesapeake v. Cunningham, 604 S.E.2d 420, 426 (Va. 2004).

[xii]Cit of Chesapeake, 604 S.E.2d at 427.

[xiii]Taylor v. City of Newport News, 214 Va. 9, 10, 197 S.E.2d 209, 210 (1973).

[xiv]Ashbury v. City of Norfolk, 152 Va. 278 (1929) (“The difficulty lies not in the statement of the governing principles of law, but in their application to particular facts. The underlying test is whether the act is for the common good of all without the element of special corporate benefit, or pecuniary profit. If it is, there is no liability, if it is not, there may be liability. That it may be undertaken voluntarily not under compulsion of statute is not of consequence.”).

[xv]Taylor v. City of Charlottesville, 240 Va. 367, 371, 397 S.E.2d 832, 835 (1990).

[xvi]Maddox v. Commonwealth, 267 Va. 657, 663, 594 S.E.2d 567, 570 (2004).

[xvii]Hoggard v. City of Richmond, 172 Va. 145, 154 (1939).

[xviii]Edwards v. City of Portsmouth, 237 Va. 167, 172, 375 S.E.2d 747, 750 (1989).

[xix]Freeman v. City of Norfolk, 221 Va. 57, 60, 266 S.E.2d 885, 886 (1980)

[xx]Bialk v. City of Hampton, 242 Va. 56, 59, 405 S.E.2d 619, 621 (1991).

[xxi]Ashbury v. City of Norfolk, 152 Va. 278 (1929).

[xxii]Transportation, Inc. v. City of Falls Church, 219 Va. 1004, 1005-06, 254 S.E.2d 62, 63-64 (1979).

[xxiii]Transportation, Inc. v. City of Falls Church, 219 Va. 1004, 1005, 254 S.E.2d 62, 63 (1974); City of Richmond v. Branch, 205 Va. 424, 428, 137 S.E.2d 882, 885 (1964).

[xxiv]City of Virginia Beach v. Flippen, 251 Va. 358, 362, 467 S.E.2d 471, 474 (1996).

[xxv]City of Richmond v. Virginia Bonded Warehouse Corp., 148 Va. 60, 71, 138 S.E. 503 (1927).

[xxvi]Holt v. Bowie, 333 F. Supp. 843 (W.D. Va. 1971); City of Richmond v. James, 170 Va. 553, 197 S.E. 416 (1938).

[xxvii]Bowling v. City of Roanoke, 568 F. Supp. 446 (W.D. Va. 1983).

[xxviii]City of Richmond v. Grizzard, 205 Va. 298, 136 S.E.2d 827 (1964).

[xxix]VEPCO v. Hampton Redevelopment and Housing Auth., 217 Va. 30, 225 S.E.2d 364 (1976).

[xxx] 37 Va. Cir. 459 (City of Richmond 1996).

[xxxi] 176 Va. 53, 10 S.E.2d 541 (1940).

[xxxii] Va. Code 8.01-195.3.

[xxxiii]Frazier v. City of Norfolk, 362 S.E.2d 688, 691, 234 Va. 388, 393 (1987) (citingTown of Big Stone Gap v. Johnson, 184 Va. 375, 378, 35 S.E.2d 71, 73 (1945) (“Once an agent of the Commonwealth is deemed to be protected by sovereign immunity, he is immunized from suit for his negligence, unless the plaintiff can demonstrate gross negligence.”) (internal citations and quotation marks omitted)).