Commonwealth v. Burns , 273 Va. 14 ( 2007 )

Present: All the Justices
COMMONWEALTH OF VIRGINIA, ET AL.
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 060774 January 12, 2007
KAREN BURNS, ET AL.
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Jr., Judge
In this interlocutory appeal, filed pursuant to Code
§ 8.01-670.1, we consider whether plaintiff's claims for
negligence and gross negligence against an employee of the
Virginia Department of Transportation and the Commonwealth of
Virginia are barred by the public duty doctrine.
Plaintiff, Karen C. Burns, administrator of the estate of
Dennis E. Burns, filed her motion for judgment against the
Commonwealth of Virginia, the Virginia Department of
Transportation, and William D. Wright. Plaintiff alleged in
her motion that the defendants were guilty of simple and gross
negligence in the performance of maintenance work on a public
highway in the Commonwealth and that her husband died as a
result of their acts and omissions.
The defendants filed a demurrer, asserting that they are
immune from the claims pursuant to the doctrine of sovereign
immunity, that the plaintiff's claims against the Commonwealth
are limited to $100,000 pursuant to the terms of the Virginia
Tort Claims Act, and that the public duty doctrine bars the
claims against Wright.
The circuit court permitted Cincinnati Insurance
Companies to intervene in this proceeding. The insurance
company had made worker's compensation payments to the
decedent's estate as required by Virginia's workers'
compensation statutes, and the insurer has a lien on any
wrongful death proceeds collected by the decedent's estate.
The circuit court dismissed the Virginia Department of
Transportation from this proceeding. The circuit court held
that the public duty doctrine did not bar the plaintiff's
claims against the defendants and, therefore, denied the
remaining portions of the demurrer.
We granted the litigants an interlocutory appeal limited
to the issue whether the public duty doctrine bars plaintiff's
claims against the defendants. In our resolution of this
issue, we will rely upon the material facts and inferences
from those facts set forth in plaintiff's motion for judgment.
Fuste v. Riverside Healthcare Ass'n, 265 Va. 127, 130, 575
S.E.2d 858, 860 (2003); McMillion v. Dryvit Systems, Inc., 262
Va. 463, 465, 552 S.E.2d 364, 365 (2001).
On April 14, 2003, a Virginia Department of
Transportation work crew was engaged in maintenance work in
Campbell County on U.S. Route 460. William D. Wright, an
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employee of the Virginia Department of Transportation,
supervised the crew.
While performing maintenance work on Route 460, the crew
created "a trench" approximately two inches below the adjacent
road service. The trench was 108 feet long and "approximately
three feet wide in the left portion of the right-hand
westbound lane of Route 460 in an area not lighted by street
lights." The crew ceased its work that evening, but did not
place barricades or otherwise prevent access to that portion
of the highway containing the trench. The crew failed to
place lights in the area or take "reasonable and appropriate
steps to warn members of the traveling public of the nature,
location and existence of [the] trench [in order] to give them
an opportunity to avoid encountering [the trench] while
traveling on the highway."
Approximately 11:29 p.m. that evening, Dennis E. Burns
operated a motorcycle on U.S. Route 460. While operating the
motorcycle in the left-hand portion of the right westbound
lane of the highway, he drove into the trench and lost control
of the motorcycle. He died as a result of injuries he
sustained.
The public duty doctrine has been described as follows:
"[I]f the duty which the official authority imposes
upon an officer is a duty to the public, a failure
to perform it, or an inadequate or erroneous
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performance, must be a public, not an individual
injury, and must be addressed, if at all, in some
form of public prosecution. On the other hand, if
the duty is a duty to the individual, then a neglect
to perform it, or to perform it properly, is an
individual wrong, and may support an individual
action for damages."
2 Thomas M. Cooley, A Treatise on the Law of Torts or the
Wrongs Which Arise Independently of Contract § 300 (D. Avery
Haggard ed., 4th ed. 1932).
The Commonwealth and Wright, relying upon our decisions
in Marshall v. Winston, 239 Va. 315, 389 S.E.2d 902 (1990),
and Burdette v. Marks, 244 Va. 309, 421 S.E.2d 419 (1992),
argue that plaintiff's claims against Wright are barred by the
public duty doctrine. We disagree. This Court has only
applied the public duty doctrine in cases when a public
official owed a duty to control the behavior of a third party,
and the third party committed acts of assaultive criminal
behavior upon another.
In Marshall, we considered whether a sheriff and a jailer
owed a special duty of care to protect a member of the general
public from harm by a third person. Lois Marshall,
administrator of her husband's estate, filed an action against
the sheriff of the City of Richmond and the chief jailer of
the City's jail for the wrongful death of her husband. Her
husband was murdered by an inmate who was negligently released
from the jail before the expiration of his sentence.
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Rejecting the plaintiff's claims, we held that these
defendants did not owe a duty to the plaintiff. Applying the
public duty doctrine in Marshall, we stated:
" '[T]here is no such thing as negligence in
the abstract, or in general. . . . Negligence must
be in relation to some person.' Kent v. Miller, 167
Va. 422, 425-26, 189 S.E. 332, 334 (1937); see
generally Prosser and Keeton on The Law of Torts
§ 53 (5th ed. 1984). Thus, in negligence claims
against a public official, a distinction must be
drawn between a public duty owed by the official to
the citizenry at large and a special duty owed to a
specific identifiable person or class of
persons. . . . Only a violation of the latter duty
will give rise to civil liability of the
official. . . . To hold a public official civilly
liable for violating a duty owed to the public at
large would subject the official to potential
liability for every action he undertook and would
not be in society's best interest."
239 Va. at 319, 389 S.E.2d at 905 (citations omitted).
We also discussed the public duty doctrine in Burdette.
In that case, we considered whether a plaintiff alleged
sufficient facts to establish that a deputy sheriff owed a
duty to the plaintiff to protect him from the acts of a third
party. James C. Burdette observed Gary D. Hungerford attack a
woman and seriously injure her. When Burdette intervened to
assist the woman, Hungerford attacked Burdette and began to
beat him with a shovel. Eventually, Arty Marks, a deputy
sheriff in Westmoreland County arrived upon the scene, and
even though he witnessed the attacks, he failed to intervene
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to protect Burdette from Hungerford's attack. 244 Va. at 310-
11, 421 S.E.2d at 419-20.
We held in Burdette that generally a person has no duty
to control the conduct of third persons in order to prevent
physical harm, but that the general rule does not apply when a
special relationship exists "(1) between the defendant and the
third person which imposes a duty upon the defendant to
control the third person's conduct, or (2) between the
defendant and the plaintiff which gives a right to protection
to the plaintiff." Id. at 311-12, 421 S.E.2d at 420.
In Burdette, we held that the public duty doctrine did
not bar the plaintiff's claim against deputy sheriff Marks
because he was on duty as a deputy sheriff at the time of the
attacks, and Marks knew or should have known that the
plaintiff was in great danger of serious bodily harm. Id. at
312-13, 421 S.E.2d at 421.
We decline the defendants' invitation to extend the
public duty doctrine. We hold that the expansion of the
public duty doctrine is unnecessary because Virginia's
sovereign immunity doctrine provides sufficient protection to
these employees in the discharge of their public duties. See,
e.g., Niese v. City of Alexandria, 264 Va. 230, 240, 564
S.E.2d 127, 133 (2002); City of Virginia Beach v. Carmichael
Dev. Co., 259 Va. 493, 499, 527 S.E.2d 778, 781-82 (2000);
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Stanfield v. Peregoy, 245 Va. 339, 429 S.E.2d 11 (1993);
Messina v. Burden, 228 Va. 301, 307-08, 321 S.E.2d 657, 660
(1984).
For the foregoing reasons, we hold that the public duty
doctrine does not bar a claim of negligence or gross
negligence against employees of the Virginia Department of
Transportation under the facts and circumstances in this case.
Accordingly, the order of the circuit court is affirmed and
the case is remanded for further proceedings.
Affirmed and remanded.
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