The Virginia Tort Claims Act (“VTCA”) waives sovereign immunity for “damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth or transportation district, if a private person, would be liable to the claimant for such damage, loss, injury or death.” 1
The VTCA goes on to provide an enumerated list of exceptions to this waiver. 2
By its express terms, the VTCA excludes counties, cities, and towns from its limited abrogation of immunity. 3
Virginia counties and municipalities generally remain immune for the torts of their employees. 4
Virginia is in the dwindling minority of jurisdictions that continue to immunize municipalities in the exercise of governmental functions. 5
Think Intentional Torts, Not Constitutional Rights
Government employees may be personally liable for their intentional torts, but they enjoy common-law discretionary immunity for negligence claims. 6
To determine whether this discretionary immunity applies, Virginia courts weigh the following factors: “(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.” 7
Virginia offers yet another layer of immunity for emergency situations by providing immunity for government entities and employees “complying with or attempting to comply with” its emergency services law. 8
Note, however, that government employees can be liable in these situations when there is “willful misconduct.” 9
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