McBride v. Bennett ( 2014 )

PRESENT: All the Justices
CAROLYN McBRIDE, AS
ADMINISTRATOR OF THE ESTATE OF
DONNELL EARL WORSLEY, DECEASED
OPINION BY
v. Record No. 131301 JUSTICE CLEO E. POWELL
OCTOBER 31, 2014
JOEY GAYLAN BENNETT, JR.,
INDIVIDUALLY AND AS AN EMPLOYEE
OF THE CITY OF NORFOLK, ET AL.
FROM THE CIRCUIT COURT FOR THE CITY OF NORFOLK
Jerrauld C. Jones, Judge
Carolyn McBride (“McBride”), the administrator for the
estate of Donnell Worsley (“Worsley”), appeals the trial court’s
judgment that sovereign immunity bars her wrongful death action
against Joey Gaylan Bennett, Jr. (“Bennett”) and Derek Michael
Folston (“Folston”).
I. BACKGROUND
On July 25, 2010, Bennett and Folston were on-duty police
officers working for the City of Norfolk. At around 1:00 a.m.,
Folston received a call to transport a prisoner. Shortly
thereafter, Bennett was dispatched to a domestic disturbance
call in the Tidewater Gardens area of Norfolk. Folston
overheard the dispatcher assign Bennett to investigate the
domestic disturbance call and decided to provide backup for
Bennett rather than respond to the transport call. Folston
later explained that he decided to go because he was near
Officer Bennett’s location while the unit actually assigned to
backup Bennett was “across the city,” and the police department
required a backup unit for domestic disturbance calls.
In assigning Bennett to investigate the domestic
disturbance call, the dispatcher did not assign a response code.
According to Norfolk Police Department General Order OPR-710
(“OPR-710”), “[w]hen no specified response code is assigned to
the message, response Code 3 will be used.” OPR-710 also
dictates that, on calls designated Code 3, “[e]mergency lights
and/or siren will not be used. All posted signs and traffic
laws will be observed.” In addition to delineating Response
Codes, OPR-710 also establishes when a police officer is
authorized to engage in “emergency vehicle operation.” 1
In responding to the call, both officers began to drive
across the Campostella Bridge. While Bennett did not know how
fast he was traveling, Folston admitted to exceeding the speed
limit after being passed by Bennett and to falling in line
behind him as they drove up the bridge. At no point did either
officer activate his emergency lights or sirens.
After cresting the crown of the bridge, Bennett began
slowing down. At that point, Bennett saw Worsley riding on his
bicycle, swerving, in the middle of the left lane, which was the
same lane in which Bennett was driving. Upon seeing Worsley,
1
The operation of emergency equipment and driving in excess
of the speed limit are considered aspects of “emergency vehicle
operation.”
2
Bennett came to a quick stop. Worsley subsequently swerved his
bicycle into the right lane, where he was then hit by Folston,
who had maneuvered into that lane to avoid hitting Bennett's
vehicle. Tragically, Worsley died as a result of injuries
sustained when he was struck by Folston’s vehicle.
McBride, as Administrator of Worsley’s estate, filed a
simple negligence 2 claim against Bennett and Folston,
individually and as employees of the City of Norfolk, seeking
damages for Worsley’s wrongful death as a result of their
misconduct. Bennett and Folston filed special pleas in bar on
the grounds of sovereign immunity. After hearing testimony from
Bennett and Folston at an ore tenus hearing, the trial court
sustained the special pleas in bar. The trial court held that
Bennett and Folston were entitled to sovereign immunity because
they had exercised discretion in determining whether and how to
respond to the dispatch.
McBride appeals.
II. ANALYSIS
The issue of whether a municipal employee is entitled to
sovereign immunity is a question of law that we review de novo.
City of Chesapeake v. Cunningham, 268 Va. 624, 633, 604 S.E.2d
420, 426 (2004). Although we review the trial court’s decision
2
McBride initially filed a gross negligence claim but later
amended her complaint, withdrawing the gross negligence claim
and proceeding on a claim of simple negligence.
3
de novo, we also recognize that, when evidence is presented “on
[a] plea ore tenus, the circuit court’s factual findings are
accorded the weight of a jury finding and will not be disturbed
on appeal unless they are plainly wrong or without evidentiary
support.” Hawthorne v. VanMarter, 279 Va. 566, 577, 692 S.E.2d
226, 233 (2010).
Where a municipal employee is charged with simple
negligence, this Court has established a four factor test for
determining whether sovereign immunity applies. James v. Jane,
221 Va. 43, 53, 282 S.E.2d 864, 869 (1980). These factors are:
(1) the nature of the function performed by the employee; (2)
the extent of the state’s interest and involvement in the
function; (3) the degree of control and direction exercised by
the state over the employee; and (4) whether the act complained
of involved the use of judgment and discretion. Id. In the
present case, only the fourth factor is at issue.
Recognizing that “[v]irtually every act performed by a
person involves the exercise of some discretion,” James, 221 Va.
at 53, 282 S.E.2d at 869, this Court has explained that there
are additional considerations involved in assessing the use of
judgment and discretion in driving situations. With regard to
the fourth factor, this Court has explained that “[t]he defense
of sovereign immunity applies only to acts of judgment and
discretion which are necessary to the performance of the
4
governmental function itself.” Heider v. Clemons, 241 Va. 143,
145, 400 S.E.2d 190, 191 (1991). In situations involving the
exercise of judgment and discretion by government employees
while driving, we look to whether the means of effectuating the
applicable government function involves “ordinary driving in
routine traffic” versus driving that requires a “degree of
judgment and discretion beyond ordinary driving situations in
routine traffic.” Friday-Spivey v. Collier, 268 Va. 384, 390-
91, 601 S.E.2d 591, 595 (2004). Sovereign immunity attaches in
the latter situation, but not in the former. Id.; Colby v.
Boyden, 241 Va. 125, 129, 400 S.E.2d 184, 187 (1991).
In further refining the analysis applied in determining the
types of driving to which sovereign immunity attaches, this
Court has acknowledged that “[u]nlike the driver in routine
traffic, [a government employee in an emergency situation] must
make difficult judgments about the best means of effectuating
the governmental purpose by embracing special risks.” Colby,
241 Va. at 129-30, 400 S.E.2d at 187. When embracing special
risks, government employees are necessarily called upon to make
“split-second decisions balancing grave personal risks, public
safety concerns, and the need to achieve the governmental
objective.” Id. Such split-second decisions may lead to
negligent acts, which can result in death or serious injury, as
the present case demonstrates. At the same time, the failure to
5
make such split-second decisions could similarly result in death
or serious injury, and one of the purposes served by sovereign
immunity is to “eliminate[] public inconvenience and danger that
might spring from officials being fearful to act.” Messina v.
Burden, 228 Va. 301, 308, 321 S.E.2d 657, 660 (1984).
Therefore, our jurisprudence is clear that, in the context of
driving a vehicle, whether the act in question involves the
requisite exercise of discretion such that sovereign immunity
applies depends on whether that act embraces “special risks” in
order to effectuate a governmental purpose.
Applying this standard, we have recognized that sovereign
immunity applies to an officer engaged in vehicular pursuit,
Colby, 241 Va. at 130, 400 S.E.2d at 187, or a firefighter
responding to a car fire, National Railroad Passenger Corp. v.
Catlett Volunteer Fire Co., 241 Va. 402, 413-14, 404 S.E.2d 216,
222 (1991), but does not apply to a deputy serving judicial
process, Heider, 241 Va. at 144-45, 400 S.E.2d at 190-91, or a
firefighter engaged in “ordinary driving in routine traffic”
while responding to a nonemergency, “public service call,”
Friday-Spivey, 268 Va. at 390, 601 S.E.2d at 594. In each case,
the application of sovereign immunity turned on whether a
government employee exercised judgment and discretion in
determining what actions to take, whether the actions taken were
6
necessary to effectuate a governmental purpose and whether those
actions inherently required them to embrace “special risks.”
In cases like the present one, the proper application of
sovereign immunity should not be based upon a court second-
guessing a split-second decision made by a government employee
effectuating a governmental function by embracing special risks.
If that were the case, sovereign immunity would be rendered
meaningless. Rather, the proper application of sovereign
immunity requires a court to make an objective determination as
to whether the decision made and the actions taken pursuant
thereto were necessary to the performance of a governmental
function and embraced special risks. In other words, the
application of sovereign immunity in a case involving the
operation of a motor vehicle by a government employee is an
objective determination considered in light of all the
circumstances including the government employee’s assessment 3 of
3
While not dispositive, a government employee’s assessment
is still relevant to the application of sovereign immunity. The
government employee’s assessment of the situation provides
valuable context relating to what governmental function was
being effectuated (e.g., an officer on routine patrol versus
responding to a crime in progress) and whether the actions taken
were “necessary to the performance of the governmental function
itself.” Heider, 241 Va. at 145, 400 S.E.2d at 191. Context
also addresses the question of whether the government employees
were exercising judgment and discretion in deciding how best to
discharge their duties.
Indeed, we have recognized that one cannot meaningfully
divorce the reason why a government employee responded to a
particular situation from how the government employee responded.
7
the situation. Nonetheless, the test is objective in nature.
The driver’s evaluation of the situation must be objectively
reasonable to permit the application of sovereign immunity.
In the present case, Bennett and Folston determined that it
was necessary for them to respond to the domestic disturbance
call in an emergency manner and proceeded to do so. In so
doing, Bennett and Folston exercised their judgment and
discretion. See Colby, 241 Va. at 130, 400 S.E.2d at 187
(recognizing that “[t]he exercise of discretion is involved even
in the initial decision to undertake [a particular course of
action]”). Furthermore, determining the proper response to a
criminal act (e.g., a domestic disturbance) and implementing
that response clearly involve the exercise of judgment and
discretion in the performance of a governmental function.
Similarly, the operation of their vehicles in an emergency
manner involved speeds in excess of the speed limit and, thus,
went beyond “ordinary driving in routine traffic.” Friday-
See Burns v. Gagnon, 283 Va. 657, 676-77, 727 S.E.2d 634, 646
(2012) (analyzing a government employee’s assessment of the
situation to explain why the employee’s actions (or lack
thereof) demonstrated an exercise of judgment and discretion).
Thus, a government employee’s assessment of the situation is a
relevant consideration. However, that consideration must
necessarily be tempered by an objective examination of the
circumstances. See Friday-Spivey, 268 Va. at 390-91, 601 S.E.2d
at 595 (determining that the facts of the case did not support
the defendant’s classification of the situation as an
“emergency”).
8
Spivey, 268 Va. at 390, 601 S.E.2d at 594. Therefore, in
exercising their judgment and discretion about the best means of
effectuating a governmental function by embracing the requisite
special risks, Bennett and Folston triggered the application of
sovereign immunity.
McBride further takes issue with the fact that the officers
had no specific knowledge about the particular call because the
domestic disturbance call was not initially declared to be an
emergency by the dispatcher. McBride asserts that sovereign
immunity cannot apply because, under those circumstances,
Bennett and Folston had no authority to engage in emergency
vehicle operation under OPR-710. While the existence of such a
policy may be relevant to any internal disciplinary actions that
Bennett and Folston may face, it is not dispositive of the
present issue. Rather, OPR-710 merely demonstrates that the
City of Norfolk Police Department has exercised administrative
control and supervision over the officers. See Colby, 241 Va.
at 129, 400 S.E.2d at 187.
In Colby, this Court held that policies or guidelines like
OPR-701 “do not, and cannot, eliminate the requirement that a
police officer, engaged in the delicate, dangerous, and
potentially deadly job of vehicular pursuit, must make prompt,
original, and crucial decisions in a highly stressful
situation.” Id. This holding implicitly acknowledges the fact
9
that no policy can account for every situation a police officer
may face. Indeed, at least one court has recognized that there
may be situations where the strict application of such policies
may not be the most prudent course of action. See Muse v.
Schleiden, 349 F. Supp. 2d 990, 997-98 (E.D. Va. 2004). Rather,
such decisions are best left to the judgment and discretion of
the officer. Id. It is this exercise of judgment and
discretion, even in violation of policy, that allows for the
invocation of sovereign immunity. 4
III. CONCLUSION
In National Railroad Passenger Corp., we concluded that
sovereign immunity attached because we could not “logically
distinguish the act of crossing a railroad track without
stopping in order to extinguish a fire from running a red light
in order to apprehend a traffic offender.” 241 Va. at 413, 404
S.E.2d at 222. Similarly, we cannot logically distinguish the
act of speeding to respond to a domestic disturbance call.
Accordingly, we will affirm the decision of the trial court.
Affirmed.
4
We further observe that each police department in the
Commonwealth likely has different policies or guidelines. A
standard for determining sovereign immunity that relied heavily
on such policies or guidelines would result in an inconsistent
application of this doctrine: the acts of an officer in one
jurisdiction might be covered by sovereign immunity, while the
same acts of another officer in the exact same situation but in
a different jurisdiction would not.
10
CHIEF JUSTICE KINSER, with whom JUSTICE McCLANAHAN joins,
concurring.
As reflected by the various views expressed in this case
and in Anders v. Kidd, Record No. 131891 (this day decided), the
application of the doctrine of sovereign immunity over the years
to ever-changing circumstances has produced less than clear
guidelines for the resolution of future cases. The majority's
resolution of the case before us adds to the complexity that
permeates the law of sovereign immunity by adding a new factor,
whether "the government employee's assessment of the situation"
in deciding "how" to respond is objectively reasonable. Our
precedent does not support second-guessing "how" an individual
seeking the protection of sovereign immunity responded in a
particular situation, even if judged by an objective standard.
Instead, we have made an objective determination by asking
whether effectuating the governmental purpose of the
individual's employer required the exercise of discretion and
judgment. Applying that analysis in this case, I conclude that
the circuit court correctly held that the defendants, Joey
Gaylan Bennett, Jr. and Derek Michael Folston, were protected by
sovereign immunity. Thus, I respectfully concur.
To determine whether an individual working for an immune
governmental entity is entitled to the protection of sovereign
immunity, we apply a four-part test first enunciated in James v.
Jane, 221 Va. 43, 53, 282 S.E.2d 864, 869 (1980). See Messina
v. Burden, 228 Va. 301, 313, 321 S.E.2d 657, 663 (1984). The
four factors are: "(1) the nature of the function the employee
performs; (2) the extent of the government's interest and
involvement in the function; (3) the degree of control and
direction exercised over the employee by the government; and (4)
whether the act in question involved the exercise of discretion
and judgment." Colby v. Boyden, 241 Va. 125, 129, 400 S.E.2d
184, 186-87 (1991); accord Nationwide Mut. Ins. Co. v. Hylton,
260 Va. 56, 63, 530 S.E.2d 421, 424 (2000); Stanfield v.
Peregoy, 245 Va. 339, 342, 429 S.E.2d 11, 12 (1993).
In the present case, only the fourth prong of the test is
at issue. Since we enunciated this test, we have addressed the
fourth prong, whether a particular act involved the exercise of
discretion and judgment, in a multitude of factual scenarios.
See, e.g., Burns v. Gagnon, 283 Va. 657, 677, 727 S.E.2d 634,
646 (2012) (holding that a high school vice principal's response
(or lack thereof) to a student's report about an impending fight
"involved the exercise of judgment and discretion" because he
had to decide whether to respond, when to respond, and how to
respond); 1 Gargiulo v. Ohar, 239 Va. 209, 215, 387 S.E.2d 787,
1
In Burns, we did not examine whether the vice-principal's
decision about "how" to respond was objectively reasonable. We
only recognized that he necessarily had to exercise discretion
and judgment in deciding whether, when, and how to respond.
12
791 (1990) (concluding that in performing duties as a fellow in
a research project, a physician exercised discretion and
judgment in diagnosing and treating participating patients);
Lentz v. Morris, 236 Va. 78, 83, 372 S.E.2d 608, 611 (1988)
(holding that "a teacher's supervision and control of a physical
education class . . . clearly involves, at least in part, the
exercise of judgment and discretion by the teacher"); Messina,
228 Va. at 313, 321 S.E.2d at 664 (granting sovereign immunity
to a chief of the operations division of a county public works
department because his supervisory activities "clearly involved
judgment and discretion").
In situations involving the operation of a motor vehicle by
an employee of an immune governmental entity, we have
recognized, however, that every person driving a vehicle "must
make myriad decisions" and thus have held that "in ordinary
driving situations the duty of due care is a ministerial
obligation." Heider v. Clemons, 241 Va. 143, 145, 400 S.E.2d
190, 191 (1991). In deciding whether the operation of a vehicle
in a particular situation was ministerial or discretionary, we
repeatedly have focused on whether the "operation of [the]
vehicle involved special risks arising from the governmental
activity and the exercise of judgment or discretion about the
proper means of effectuating the governmental purpose of the
defendant's employer." Stanfield, 245 Va. at 344, 429 S.E.2d at
13
13-14; see also Colby, 241 Va. at 129, 400 S.E.2d at 187 (asking
whether a police officer in vehicular pursuit of a fleeing
lawbreaker had to make "difficult judgments about the best means
of effectuating the governmental purpose by embracing special
risks"). We have differentiated between drivers in situations
necessarily requiring "discretionary, split-second decisions
balancing grave personal risks, public safety concerns, and the
need to achieve the governmental objective," Colby, 241 Va. at
129-30, 400 S.E.2d at 187, and drivers involved in "the simple
operation of a vehicle in routine traffic." Smith v. Settle,
254 Va. 348, 353 n.7, 492 S.E.2d 427, 430 n.7 (1997). While the
former is deemed conduct involving the exercise of discretion
and judgment and thus protected by sovereign immunity against
charges of simple negligence, the latter is not.
For example, in Colby, a law enforcement officer was
pursuing a motorist who had violated a traffic law. 241 Va. at
127, 400 S.E.2d at 185-86. During the pursuit, the officer
proceeded to cross an intersection against a red traffic light,
colliding with another vehicle. Id. at 127, 400 S.E.2d at 186.
Affirming the trial court's judgment sustaining the officer's
plea in bar based on sovereign immunity, we concluded that "a
police officer, engaged in the delicate, dangerous, and
potentially deadly job of vehicular pursuit, must make prompt,
original, and crucial decisions in a highly stressful
14
situation." Id. at 129, 400 S.E.2d at 187. Although his
municipal employer exercised "administrative control and
supervision over [the officer's] activities through the
promulgation of guidelines governing actions taken in response
to emergency situations," we determined that those guidelines
could not eliminate the need for the officer to make
discretionary decisions during the course of vehicular pursuit.
Id. Thus, we held that, "unlike the driver in routine traffic,"
the police officer was cloaked with the protection of sovereign
immunity. Id.
Similarly, in National Railroad Passenger Corp. v. Catlett
Volunteer Fire Co., 241 Va. 402, 404 S.E.2d 216 (1991), we
addressed whether a volunteer fireman was immune from liability
under the doctrine of sovereign immunity for an accident that
occurred while the fireman was driving a fire truck to the site
of a fire. Id. at 405, 404 S.E.2d at 217. The fireman
proceeded through a railroad crossing without stopping, and a
train struck the fire truck. Id. The railroad company asserted
that the fireman was not entitled to the defense of sovereign
immunity because his act of crossing the railroad tracks without
first stopping "was a ministerial act, not a discretionary act
to which sovereign immunity attaches." Id. at 413, 404 S.E.2d
at 222. Disagreeing, we concluded that, like the police officer
in Colby, the fireman was exercising discretion and judgment
15
about the best means of effectuating the governmental purpose
and in doing so was embracing special risks. Id. See also
Smith, 254 Va. at 353 n.7, 492 S.E.2d at 430 n.7 (holding that
an ambulance driver traveling to a location where he could
establish radio contact with his other squad members to
determine whether he was needed at the scene of an emergency was
not engaged in "the simple operation of a vehicle in routine
traffic" because the trip "involved the exercise of discretion
and judgment required by a person performing a governmental
function in operating a vehicle in response to an emergency").
We again applied the same analysis in Stanfield, which did
not involve an emergency situation. There, the defendant-driver
was operating a city truck and spreading salt during a snowstorm
when his truck collided with another vehicle. 245 Va. at 340,
429 S.E.2d at 11. In concluding that the driver was entitled to
the protection of sovereign immunity, we stated that "the
conduct of driving and spreading salt combined [is] an integral
part of the governmental function of rendering the city streets
safe for public travel" and that "the operation of this vehicle
involved special risks arising from the governmental activity
and the exercise of judgment or discretion about the proper
means of effectuating the governmental purpose." Id. at 344,
429 S.E.2d at 13-14. We explained that if the "accident had
happened as defendant was driving his truck en route to the area
16
he was assigned to plow and salt, or if it occurred when he was
returning to his . . . headquarters after completing his
function of plowing and salting, he would have been engaged in
'the simple operation' of the truck 'in routine traffic,' a
ministerial act." Id. at 344, 429 S.E.2d at 13 (quoting Heider,
241 Va. at 145, 400 S.E.2d at 191 and Colby, 241 Va. at 129, 400
S.E.2d at 187). Compare Wynn v. Gandy, 170 Va. 590, 595, 197
S.E. 527, 529 (1938) (holding that driving a school bus while
not transporting children did not involve judgment or discretion
but was purely ministerial) and Heider, 241 Va. at 145, 400
S.E.2d at 191 (holding that a police officer who was involved in
an accident while operating his vehicle after serving judicial
process was not exercising "judgment and discretion about the
proper means of effectuating the governmental purpose of" his
employer but was engaged in "the simple operation of an
automobile [that] did not involve special risks arising from the
governmental activity") with Linhart v. Lawson, 261 Va. 30, 36,
540 S.E.2d 875, 878 (2001) (holding that a school bus driver's
act of transporting children did involve the exercise of
judgment and discretion).
In none of these cases did the Court look at "how" the
defendant chose to respond and decide whether the response was
objectively reasonable. For example, in Stanfield, we did not
ask whether the defendant's decision, as he was spreading salt
17
on a city street, to attempt to stop at a stop sign located at
an intersection was objectively reasonable. 245 Va. at 342, 429
S.E.2d at 12. Instead, the driver was exercising the requisite
discretion and judgment because, to effectuate the governmental
purpose, he had to decide not only "whether a particular street
needed to be salted, plowed, or a combination of both" but also
whether to spread salt on the entire street and how much salt to
spread. Id. Thus, we concluded that "[t]he operation of the
truck in snow and ice to effectuate a governmental purpose
clearly involved, at least in part, the exercise of judgment and
discretion by the driver." Id. at 343, 429 S.E.2d at 13. See
also Smith, 254 Va. at 353 n.7, 492 S.E.2d at 430 n.7; National
R.R. Passenger Corp., 241 Va. at 413, 404 S.E.2d at 222; Colby,
241 Va. at 129, 400 S.E.2d at 187.
Obviously, the facts and circumstances in each case are
relevant to understanding the precise governmental function at
issue and whether effectuating that function requires the
exercise of discretion and judgment. But, we have not looked
past that point and examined "how" the driver chose to respond.
Instead, we simply asked whether an employee of an immune
governmental entity, while driving an automobile, was engaged in
routine driving or driving that involved the exercise of
judgment and discretion.
18
If it is necessary for the government employee to
demonstrate on an objective basis that the actions taken were
reasonable, this new factor introduced by the majority
essentially deprives the doctrine of sovereign immunity of its
purpose: it will only provide government employees with immunity
from negligence claims if they were not negligent in responding
to the circumstances they faced. 2 See Litchford v. Hancock, 232
Va. 496, 499, 352 S.E.2d. 335, 337 (1987) (stating that the
driver of a vehicle is negligent if the driver fails "to use
ordinary care to observe other vehicles on the highway, to see
what a reasonable person would have seen, and to react as a
reasonable person would have reacted under the circumstances to
avoid a collision"); Smith v. Lamar, 212 Va. 820, 823, 188
S.E.2d 72, 74 (1972) (holding that "reasonable care" or
"ordinary care" is that "degree of care which an ordinary
2
Sovereign immunity protects a defendant working for an
immune governmental entity against only claims for simple
negligence. See Green v. Ingram, 269 Va. 281, 290, 608 S.E.2d
917, 922 (2005); National R.R. Passenger Corp., 241 Va. at 414,
404 S.E.2d at 222. Thus, when "a defendant's actions are
clothed with sovereign immunity, a plaintiff must establish
gross negligence in order to prevail." Colby, 241 Va. at 130,
400 S.E.2d at 187. In exercising judgment and discretion to
effectuate a governmental purpose, if a defendant does so in
such a manner that shows "indifference to others as constitutes
an utter disregard of prudence amounting to complete neglect of
the safety of [another], that is, such a degree of negligence as
should shock fair minded men although something less than
willful recklessness," the defendant is liable for gross
negligence. Laster v. Tatum, 206 Va. 804, 807, 146 S.E.2d 231,
233 (1966) (internal quotation marks omitted); accord Green, 269
Va. at 290-91, 608 S.E.2d at 922.
19
prudent person would exercise under the same or similar
circumstances to avoid injury to another"). Also, if a
government employee has successfully demonstrated that the
actions taken were objectively reasonable, I question whether
that employee could ever then be liable for gross negligence.
At a minimum, if this new factor is appropriate, the
majority should acknowledge its departure from our precedent and
explain why it is necessary. Moreover, in the case before us,
the majority does not apply this new factor. The majority never
decides whether the decisions by Bennett and Folston to drive
their vehicles in excess of the speed limit without lights and
sirens were objectively reasonable. Instead, the majority
concludes, by utilizing the approach supported by our precedent,
that "determining the proper response to a criminal act (i.e., a
domestic disturbance) and implementing that response clearly
involves the exercise of judgment and discretion in the
performance of a governmental function."
Nevertheless, I conclude, like the majority, that the
circuit court did not err in sustaining the special pleas in bar
based on sovereign immunity filed by Bennett and Folston. As
police officers, they were effectuating the governmental
function of responding to a domestic disturbance call. Like the
police officer in Colby and the driver spreading salt in
Stanfield, the operation of their respective vehicles entailed
20
"special risks arising from the governmental activity and the
exercise of judgment or discretion about the proper means of
effectuating the governmental purpose." Stanfield, 245 Va. at
344, 429 S.E.2d at 14. For that reason, they are entitled to
the protection of sovereign immunity. Whether their decisions
about "how" to respond were objectively reasonable, even though
the dispatch assigned no response code to the call, is not
determinative.
I recognize, however, that this Court utilized a different
approach in Friday-Spivey v. Collier, 268 Va. 384, 601 S.E.2d
591 (2004). There, a fire truck collided with a motor vehicle
after the fire truck driver failed to yield the right-of-way.
Id. at 386, 601 S.E.2d at 592. The fire technician was
responding to a "Priority 2" dispatch regarding an infant locked
in a vehicle. Id. at 387, 601 S.E.2d at 592. Under that
protocol, the technician "was required to proceed without
activating warning devices, i.e., 'no lights and no sirens,' and
to obey all statutes governing the operation of motor vehicles."
Id.
In reversing the trial court's judgment holding that this
driver was protected by the doctrine of sovereign immunity, the
Court relied on both the protocol and the technician's
testimony, admitting "that, based on what he knew at the time,
'there was no danger' involved in the call to which they were
21
responding and he understood that 'when [he] got a [Priority 2]
call, [he was] to respond in a nonemergency manner and conform
to all the traffic regulations.'" Id. at 390, 601 S.E.2d at
594. When asked whether "there [was] any difference in the way
you respond to a call for a cat in a tree versus an infant
locked in a car, according to [the] regulations," he responded,
"[my] regulations, no." Id.
The Court's reliance on the fire department operating
procedures and the fire technician's testimony admitting that he
knew there was no danger involved in the call represented a
departure from our precedent applying the doctrine of sovereign
immunity. We specifically had rejected the use of guidelines
and operating procedures in Colby and National Railroad
Passenger Corp. And, in determining whether the operation of a
vehicle involved the exercise of discretion and judgment, the
Court had not previously examined a driver's subjective
assessment about the nature of the specific situation at issue
and how to respond in deciding whether the driver was protected
by sovereign immunity. In my view, the approach followed in our
cases before Friday-Spivey should be applied in the case before
us, and to the extent that Friday-Spivey suggests that the
application of sovereign immunity turns on such subjective
assessments or internal policies and operating procedures, it
should be overruled.
22
For these reasons, I respectfully concur and would affirm
the circuit court's judgment.
JUSTICE MIMS, dissenting.
Because a public employee who flagrantly violates a direct
order is acting outside the limits of his or her permissible
judgment and discretion, I dissent.
Facts
Donnell Worsley spent much of the last day of his life at
his mother's house with family. In the early evening, he
attended the birthday party of a family friend. He returned to
his mother's house and then rode his bike home. The night was
clear. The roads were dry and well-lit.
Worsley never made it home. As he pedaled his bike on the
Campostella Bridge, two police cruisers were approaching at high
speed behind him.
Officer Bennett had received a call for a "disorderly
trespasser or disturbance or something of that nature" in the
Tidewater Gardens community. Officer Folston had previously
received a call from dispatch to transport a prisoner. He
disregarded that call without permission when he overheard
Officer Bennett take the call for the "disturbance."
The cruiser was "full throttle," "pedal down to the floor"
as Folston drove up the bridge. Coming down, the officers began
23
to slow slightly, because they were going too fast to make an
upcoming turn. Suddenly, Bennett hit his brakes and came to a
complete stop as he encountered Worsley. Folston swerved to
avoid rear-ending Bennett's cruiser. As he did, he struck
Worsley. The impact threw Worsley onto the windshield, which
shattered. Folston's cruiser dragged the crumpled bicycle more
than 200 feet.
The officers were not using their sirens or emergency
lights. There is evidence that the cruisers reached speeds
between eighty and eighty-eight miles per hour.
Bennett and Folston were each indicted on one charge of
involuntary manslaughter and two charges of reckless driving.
In Bennett's case, the involuntary manslaughter charge and one
of the two charges of reckless driving were nolle prossed. The
Circuit Court of the City of Norfolk convicted Bennett of the
remaining reckless driving charge. Folston entered an Alford
Plea to one of the reckless driving charges, and the remaining
charges were nolle prossed.
Discussion
The majority concludes that sovereign immunity attached to
the officers’ actions while responding to the uncategorized
disturbance call, despite the clear and express order issued by
the Norfolk Chief of Police to treat such calls as nonemergency
responses while observing "[a]ll posted signs and traffic laws."
Because they violated an express order that dictated the limits
of their permitted judgment and discretion in the performance of
24
this government function, our precedent dictates that they
cannot hide behind the shield of sovereign immunity.
1. Norfolk Police Department General Order OPR-710
The majority opinion fails to give due regard to Norfolk
Police Department General Order OPR-710 (“General Order”). As
the Court has explained: "Whether the act performed involves the
use of judgment and discretion is a consideration, but it is not
always determinative. . . . Of equal importance is the degree of
control and direction exercised by the [governmental body] over
the employee whose negligence is involved." James v. Jane, 221
Va. 43, 53, 282 S.E.2d 864, 869 (1980) (emphasis added). The
General Order exercises clear control and direction for the
emergency operation of police vehicles, which constrains
officers' otherwise-permitted judgment and discretion. Bennett
and Folston flagrantly disregarded this order and, therefore,
were acting outside the limits of their authority. They
exercised no permissible "judgment and discretion" in
unilaterally choosing to speed recklessly without sirens or
emergency lights.
The structure of the General Order makes it clear that
there are four situations in which “emergency vehicle operation”
is authorized. If one of those four situations applies, then
police officers may assess ten factors to determine the
appropriate response to the emergency situation.
25
The relevant sections of the General Order (I, II, and V)
are printed in their entirety below:
I. Policy
Sworn personnel will operate police vehicles
in emergency situations in the safest
possible manner, consistent with law
enforcement responsibilities, and in
accordance with the procedures contained in
this order.
II. Emergency Operation of Police Vehicles
In undertaking any emergency vehicle
operation, officers must balance the
seriousness of the situation and the
importance of the law enforcement objective
involved against the hazards to the safety of
citizens and police personnel involved.
A. Emergency vehicle operation is authorized
during the following:
1. When the immediate presence of the
police is required in order to protect
a person from possible death or serious
injury.
2. When the telecommunicator dispatches a
message with a response Code 1 or 2.
3. When directly authorized by a
supervisor.
4. When engaged in a vehicular pursuit.
B. Officers are expected to exercise good
judgment as to the necessity and
justification for operating their vehicles
under emergency conditions. Factors and
conditions to be assessed by officers prior
to and during the emergency operation of
the police vehicle include, but are not
limited to, the following:
26
1. Nature and seriousness of offense or
call
2. Weather conditions
3. Road surface conditions
4. Traffic conditions
5. Time of day
6. Knowledge of area
7. Ability to control vehicle
8. Type of vehicles involved
9. Availability of assisting units
10. Geographic location – school,
residential, business, etc.
. . . .
V. Response Codes
A. Code 1- With due regard for safety,
emergency lights and siren must be used at
all times when operating a vehicle in
excess of the speed limit, or contrary to
other traffic regulations, regardless of
the time of day or the location. Speed
limits will not be exceeded by more than 15
mph, except during pursuits.
B. Code 2- With due regard for safety,
emergency lights must be used at all times
and siren used as necessary. Police units
will come to a full stop at each red light,
then proceed through the intersection only
if it is possible to do so without danger
to pedestrians or vehicles. All other
traffic controls will be approached with
extreme caution. Speed limits will not be
exceeded by more than 5 mph.
C. Code 3- Emergency lights and/or siren will
not be used. All posted signs and traffic
laws will be observed. When no specified
response code is assigned to the message,
response Code 3 will be used.
Pursuant to the plain language of subsection (II)(A) of the
General Order, an officer is authorized to engage in “emergency
27
vehicle operation” in only four scenarios: (1) when his or her
immediate presence is required to protect a person from possible
death or serious injury; (2) when the dispatch has a response
Code 1 or 2; (3) when directly authorized by a supervisor; or
(4) when engaged in a vehicular pursuit. Only if one of these
four scenarios applies does the officer then have authority to
exercise independent judgment and discretion to disregard
traffic laws. To guide officers in the exercise of this
judgment and discretion, subsection (II)(B) provides a list of
ten factors for consideration. But these factors do not come
into play unless the officer is first authorized to engage in
“emergency vehicle operation” pursuant to one of the four prongs
of subsection (II)(A).
In this case, the domestic disturbance call from the
dispatcher was not assigned a code, and therefore it was
required to be treated as Code 3. It did not involve vehicular
pursuit. The officers were not authorized by their supervisors
to treat it as an emergency situation.
Thus, the only possible basis for engaging in “emergency
vehicle operation” under the policy was if “the immediate
presence of the police [wa]s required in order to protect a
person from possible death or serious injury.” The majority
opinion makes no attempt to argue that scenario applies.
Indeed, the majority makes the conclusory assertion that
28
"Bennett and Folston determined that it was necessary for them
to respond to the domestic disturbance call in an emergency
manner." However, there are no facts in the record to support
that conclusion. To the contrary, the dispatcher, who was aware
of the facts, decided not to code the response. That was a
factual determination that the officers' "immediate presence"
was not required to prevent death or serious injury.
The majority concludes that Folston's unilateral and
unauthorized decision to back up Bennett (even though the
dispatcher had already assigned back up), coupled with their
collective, unauthorized decision to speed recklessly to the
call without sirens or lights--again, unauthorized--was enough
to trigger sovereign immunity. I disagree. 1
Whether a dispatch falls within one of the General Order’s
authorizations for “emergency vehicle operation” is an objective
1
In fact, the officers did not comply with the General
Order's mandates for Code 1 or Code 2 emergency operation
either. In other words, Bennett and Folston did not respond in
any sort of authorized manner; they just drove fast. As the
accident report indicates, the speed limit in the area was 30
mph, and Folston surmised that he was probably driving 45-50 mph
at the time of the crash (despite having the "pedal down to the
floor" going up the bridge), while Bennett indicated that he
reached speeds around 60 mph. Code 1 operation requires that
"[s]peed limits will not be exceeded by more than 15 mph, except
during pursuits." Under Code 1, "emergency lights and siren
must be used at all times when operating a vehicle in excess of
the speed limit . . . regardless of the time of day or the
location." Under Code 2, which requires use of lights and
requires intermittent use of sirens, "[s]peed limits will not be
exceeded by more than 5 mph."
29
determination that must be based on the specific facts about
that particular dispatch known by the officer at the time of
response. Generalized knowledge regarding the character of the
area or the type of call cannot suffice. Otherwise, an officer
could overrule a dispatcher’s assigned response code and treat
the call as an emergency based on nothing more than after-the-
fact, self-serving conjecture. Such a result would effectively
nullify the Norfolk Police Department’s established system of
response codes and nullify the direct order of the Norfolk Chief
of Police.
2. Friday-Spivey v. Collier Controls this Case
These facts place this case squarely within the rule of
Friday-Spivey v. Collier, 268 Va. 384, 601 S.E.2d 591 (2004),
which the Court decided a mere decade ago. It remains binding
authority in the Commonwealth; it has not been overruled or
limited. Therein, the Court drew a clear line between driving
in emergency conditions that embraces "special risks" and
"ordinary driving situations," derived from the Fairfax County
Fire and Rescue Department Standard Operating Procedures.
In Friday-Spivey, we refused to grant sovereign immunity to
a fire truck driver who collided with a motorist while
responding to a "Priority 2" call indicating that an infant was
locked in a parked car. Id. at 390-91, 601 S.E.2d at 594-95.
Under the Fairfax County Fire and Rescue Department Standard
30
Operating Procedures, the driver was "required" to proceed
without emergency equipment and "to obey all statutes governing
the operation of motor vehicles." Id. at 387, 601 S.E.2d at
592. Similar to the facts in this case, the driver was not
using his emergency lights or siren, but failed to yield the
right of way to another vehicle. Id. at 386-87, 601 S.E. at
592-93. He testified that he had exercised his discretion to
determine the “quickest route possible” because he “just [did
not] know what to expect when [he got] there.” Id. at 387, 601
S.E.2d at 593. The Court held that, “[d]espite a natural
inclination to classify the report of a child in a locked car as
an ‘emergency,’” he was not required to “exercise . . .
discretion beyond that required for ordinary driving in routine
traffic situations.” Id. at 390, 601 S.E.2d at 594. Thus, the
driver was performing a ministerial function to which sovereign
immunity did not apply. Id. at 391, 601 S.E.2d at 595.
The majority makes no attempt to distinguish the facts of
Friday-Spivey from the facts of this case. Moreover, there is
little effort to address the officers' disobedience of the
General Order. Rather, the majority sidesteps the officers'
unjustified insubordination with a quote from Colby v. Boyden,
241 Va. 125, 129, 400 S.E.2d 184, 187 (1991): "[T]hose
guidelines do not, and cannot, eliminate the requirement that a
police officer, engaged in the delicate, dangerous, and
31
potentially deadly job of vehicular pursuit, must make prompt,
original, and crucial decisions." However, this ignores a
significant factual distinction. In Colby, there were known,
objective facts of an emergency situation. Colby applied
immunity to a police officer who had observed a traffic
infraction committed in his presence, after which the
perpetrator fled at a high rate of speed, and who initiated
vehicular pursuit. Id. at 127, 130, 400 S.E.2d at 185-187. In
fact, in the present case vehicular pursuit is one of the four
prongs in the General Order that would have permitted the
officers to exercise such judgment and discretion. As discussed
in more detail below, and like the driver in Friday-Spivey,
Bennett and Folston could point to no specific facts of a
defined emergency situation. They had no knowledge that would
permit judgment and discretion to speed recklessly without
emergency lights or sirens. 2
Nothing about the call indicated that the immediate
presence of the officers was needed to protect anyone from
“possible death or serious injury.” In fact, when Bennett was
2
Further, unlike the General Order, which requires Norfolk
police officers to treat calls with no specific response code as
Code 3 nonemergency calls, Virginia Beach Police Department
General Order 8.01, addressed in Colby, expressly authorized
officers to judge the response required according to the
information available to the officer at the time. City of
Virginia Beach Police Department, General Order 8.01, at 5,
Colby v. Boyden, 241 Va. 125, 129, 400 S.E.2d 184, 187 (1991).
32
questioned by his supervisors shortly after the accident, he
stated that “[t]here was no like excuse or reason for [speeding
to get to the scene].” And at the hearing before the circuit
court, Bennett agreed that his decision was "not based on any
exigent emergency circumstance."
Similarly, Folston, who was not even assigned to respond to
the call, acknowledged that there was only "an unidentified
problem" and that "[t]here may or may not be a danger." Like
the driver in Friday-Spivey who "just [did not] know what to
expect when [he got] there,” Folston posited that this "unknown"
presented an exigent circumstance. Yet the officers could have
addressed that exigent circumstance without speeding recklessly
through the city and endangering the lives of innocent
civilians. For example, they could have learned about the
specific facts of the call--or even verified the code--by
accessing the computer in the vehicle. Unlike in Colby, based
on the specific information available to the officers at the
time of the response, there was no emergency involved in the
call to which they were responding. Consequently, the General
Order mandated that the officers respond to the call in a
nonemergency manner. 3
3
This is distinguishable from Muse v. Schleiden, 349
F. Supp. 2d 990 (E.D. Va. 2004), in which the court held that
sovereign immunity applied to an officer responding to a
domestic violence call. In Muse, the responding officer had
33
Although the majority opinion cites Friday-Spivey five
times, it utterly fails to meaningfully address the importance
that we attached to the departmental policy governing emergency
vehicle operation in that case. See 268 Va. at 391, 601 S.E.2d
at 595 ("[Defendant] was in routine traffic under a mandate 'to
respond in a nonemergency manner and conform to all the traffic
regulations.'") (emphasis added). Make no mistake, the majority
opinion vitiates the rule of Friday-Spivey and leaves it with
little to no vitality. In effect, it is overruled sub silentio.
The majority opinion establishes a lamentable precedent by
casting adrift the determination of "judgment and discretion"
from its firm moorings within authority granted by well-reasoned
departmental guidance such as the General Order. There are
three reasons to give such guidance due deference.
First, a speeding emergency vehicle is a dangerous weapon,
capable of killing innocent civilians, as occurred in this
tragic case. Departmental policies limit that danger: in this
instance by requiring activation of sirens and emergency lights
to warn unsuspecting motorists and bicyclists when speeding up
specific information regarding the circumstances of the call.
The dispatch reflected that the caller’s daughter had struck him
in the face, was standing next to him at the time of the call,
and was “out of control.” Id. at 992. From those facts, the
officer reasonably determined that an assault was in progress
and that he needed to get to the call as quickly as possible.
Id. at 996.
34
to fifteen miles per hour over the speed limit and prohibiting
speeds in excess of that, except during pursuit.
Second, such policies--particularly when expressed as
commands such as the General Order--limit the authority, and
therefore the permitted judgment and discretion, of public
employees for good purpose. They are intended to prevent free-
lancing, and ensure respect for the chain of command. In this
instance, a superior officer could have authorized emergency
operation, but no such request was made.
Third, though courts may desire a single statewide standard
that neatly categorizes "judgment and discretion" in all
instances, proper judicial respect for local policies reflects
due consideration of the Commonwealth's diversity. Judgment and
discretion on the crowded city streets of Norfolk or the
sprawling highway network of Fairfax County will necessarily
involve different factors than on the less-traveled rural roads
of Lee County. Departmental orders and policies reflect the
unique traffic conditions that are likely to be faced in each
locality. The Chief of Police in the City of Norfolk is better
able to provide useful guidance to officers than a court one
hundred miles away. And when that guidance is flagrantly
violated, no court should provide a shield of immunity from
civil consequences.
35
3. An Objective Determination Regarding the Application of
Sovereign Immunity
I agree with the majority's proposition that "the proper
application of sovereign immunity requires a court to make an
objective determination as to whether the decision made and the
actions taken pursuant thereto were necessary to the performance
of a governmental function and embraced special risks."
However, I disagree with the majority's conclusion that Bennett
and Folston possessed or exercised sufficient judgment and
discretion to trigger application of sovereign immunity. Their
Chief of Police had already issued an order that required a
nonemergency response, thereby significantly limiting such
judgment and discretion.
Moreover, I disagree that their decision was "necessary."
The Norfolk Chief of Police had already made the "necessary
decision" that controlled how officers must respond. The only
decision Bennett and Folston had to make was whether to act
within their authority and abide by the General Order or whether
to engage in insubordination. They chose to ignore the order,
and Donnell Worsley's tragic and preventable death was the
result.
According to the majority's logic:
[T]he operation of their vehicles in an emergency
manner involved speeds in excess of the speed limit
and, thus, went beyond "ordinary driving in routine
traffic." . . . Therefore, in exercising their
36
judgment and discretion about the best means of
effectuating a governmental function by embracing
the requisite special risks, Bennett and Folston
triggered the application of sovereign immunity.
This reasoning is circular. Bennett and Folston treated a Code
3, nonemergency situation as an emergency, without authorization
from their superiors or justification based on specific,
objective facts known to them but not their supervisor. They
unjustifiably drove their vehicles at excessive, reckless speeds
without sirens or emergency lights. Thus, they created the
"special risks" that triggered the application of sovereign
immunity. This reasoning permits government employees to assume
an emergency into existence and respond in a manner that poses
"special risks" to themselves and the public while hiding behind
the shield of civil immunity.
Officers who obey the orders of their superiors and are
engaged in the dangerous and potentially deadly job of
responding to emergency situations must make prompt and crucial
decisions in the midst of highly stressful conditions. “Such
situations involve necessarily discretionary, split-second
decisions balancing grave personal risks, public safety
concerns, and the need to achieve the governmental objective.”
Colby, 241 Va. at 129-30, 400 S.E.2d at 187. That principle is
sacrosanct. However, the Norfolk Police Department, through the
General Order, also requires its officers to make and execute
37
certain decisions according to clear direction. The General
Order represents the chain-of-command within the police
department. It provides an objective means for evaluating
official action. In other words, denying immunity under these
circumstances is consistent with internal expectations and
standards. This is not a question of courts second guessing
legitimate official actions. Here, the rules were established
beforehand.
As Colby recognizes, there are scenarios where exigent
circumstances can authorize an officer to exercise a level of
refined discretion that exceeds the language of a policy. Id.
at 129, 400 S.E.2d at 187. However, raising the shield of
sovereign immunity must require a basis in fact, rather than
generalization, speculation, or post hoc rationalization. See
id. The absence of specific facts triggering the need for
"prompt, original, and crucial decisions" distinguishes this
case from Colby, because the "original" decisions dictating the
manner of response under these circumstances had already been
made by Bennett's and Folston's superiors.
Conclusion
Officers Bennett and Folston were under a sworn duty to act
within the authority conferred by their badges. That authority
was expressed clearly in the General Order. That order
expressed the policy of their chain of command regarding the
38
judgment and discretion they were authorized to exercise while
driving. They flagrantly breached their sworn duty when they
disregarded the General Order. They acted far outside their
authority. They ignored their chain of command.
Friday-Spivey is the law of the Commonwealth. It governs
the facts of this case. It dictates reversal and remand to the
trial court for a full trial on the merits.
I dissent.
39