PRESENT: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Russell, S.J.
MELISSA DOUD, ADMINISTRATRIX
OF THE ESTATE OF JAMES ELLIS PROFFITT
OPINION BY
v. Record No. 100285 SENIOR JUSTICE CHARLES S. RUSSELL
September 16, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Henry A. Vanover, Judge
This appeal presents the question whether the Commonwealth
is liable, pursuant to the Virginia Tort Claims Act (VTCA), Code
§ 8.01-195.1 et seq., for damages incurred by a prisoner
resulting from the alleged negligence of a sheriff’s deputies.
Facts and Proceedings
The facts essential to the appeal are undisputed. On
January 22, 2001, James Ellis Proffitt was convicted in the
Circuit Court of Russell County of a felony sexual offense
involving a minor and was sentenced to a term of imprisonment.
He was remanded to the custody of the Sheriff of Russell County
and was transported to the Russell County jail as a prisoner
awaiting transfer to the custody of the Department of
Corrections.
The plaintiff alleges that during his incarceration,
Proffitt was severely kicked, hit and beaten by fellow inmates,
resulting in serious and permanent injuries. The circuit court,
shortly thereafter, determined that Proffitt was incapacitated
and appointed Melissa Doud (the plaintiff) his guardian and
conservator. In July 2001, the plaintiff sent a notice of claim
under the VTCA to the sheriff, the county administrator and the
county attorney of Russell County, giving notice of a claim
against the sheriff’s department for Proffitt’s injuries
allegedly caused by the negligence of the sheriff’s department.
In January 2002, the plaintiff gave notice of a claim against
the Commonwealth based on the same cause of action and arising
out of the actions of agents, officers and employees of Russell
County "acting in the course of their employment and on behalf
of the Sheriff."
In 2003, the plaintiff brought the present action in the
Circuit Court of Russell County against the county, the sheriff,
a named deputy, unknown deputies and jailors, and the
Commonwealth. The plaintiff alleged that the sheriff’s
employees had placed Proffitt in the general jail population
where it was foreseeable that he would be attacked by fellow
inmates because of the nature of his crime unless given
protection, which the jailors had negligently failed to provide.
Ultimately, the plaintiff nonsuited the claims against all
defendants except the Commonwealth. The plaintiff’s theory of
recovery against the Commonwealth was based entirely on
respondeat superior, in that the sheriff and his deputies and
jailors "acted under the authority of and on behalf of . . . the
Commonwealth of Virginia." Proffitt died in 2005 and the
plaintiff qualified as his administratrix and was substituted in
that capacity as party plaintiff.
The Commonwealth filed a plea of sovereign immunity,
contending that the actions complained of were not within the
purview of the VTCA. In 2009, the court sustained the plea and
entered an order dismissing the action on the basis of sovereign
immunity. We awarded the plaintiff an appeal.
Analysis
This appeal presents pure questions of law, to which we
apply a de novo standard of review. Syed v. ZH Technologies,
Inc., 280 Va. 58, 69, 694 S.E.2d 625, 631 (2010).
At common law, the Commonwealth was immune from liability
for torts committed by its officers, employees and agents.
VEPCO v. Hampton Red. Auth., 217 Va. 30, 32-33, 225 S.E.2d 364,
367 (1976). For the salutary reasons described in Messina v.
Burden, 228 Va. 301, 307, 321 S.E.2d 657, 660 (1984), that
immunity continues to apply in the absence of a legislative
waiver by which the Commonwealth consents to be sued in its own
courts. Gray v. Virginia Sec'y of Transp., 276 Va. 93, 101, 662
S.E.2d 66, 70 (2008). In the VTCA, the Commonwealth has waived
its sovereign immunity for tort claims in the circumstances to
which the statute applies, but the waiver is a limited one and
the VTCA, being an enactment in derogation of the common law, is
strictly construed. Rector & Visitors of the Univ. of Va. v.
Carter, 267 Va. 242, 244-45, 591 S.E.2d 76, 78 (2004). A waiver
of sovereign immunity may not be inferred from general statutory
language, but must be expressly and explicitly stated. Afzall
v. Commonwealth, 273 Va. 226, 230, 639 S.E.2d 279, 281 (2007).
In the absence of such an express waiver, the courts of the
Commonwealth lack subject-matter jurisdiction to adjudicate tort
claims against the Commonwealth. Id.
Accordingly, we must decide whether such an express waiver
of sovereign immunity renders the Commonwealth liable for the
negligent acts or omissions of deputies and jailors employed by
a county sheriff. The VTCA provides, in pertinent part:
[T]he Commonwealth shall be liable for claims for
money only accruing on or after July 1, 1982
. . . on account of 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 . . . .
Code § 8.01-195.3 (emphasis added). In Code § 8.01-195.2, the
VTCA defines an "employee" as "any officer, employee or agent of
any agency, or any person acting on behalf of an agency in an
official capacity . . . ." The same section defines an "agency"
as "any department, institution, authority, instrumentality,
board or other administrative agency of the government of the
Commonwealth of Virginia . . . ." (Emphasis added.)
Article VII, Section 4 of the Constitution of Virginia
provides that the qualified voters of each county and city shall
elect a treasurer, a sheriff, an attorney for the Commonwealth,
a clerk of the court of record and a commissioner of the
revenue. These five are known as the "constitutional officers"
because their offices are created directly by the constitution
rather than by legislative enactment.
[A] constitutional officer is an independent
public official whose authority is derived from
the Constitution of Virginia even though the
duties of the office may be prescribed by
statute. While constitutional officers may
perform certain functions in conjunction with
units of county or municipal government, neither
the officers nor their offices are agencies of
such governmental units.
Carraway v. Hill, 265 Va. 20, 24, 574 S.E.2d 274, 276 (2003)
(internal citation omitted).
Constitutional officers are responsible to the voters who
elected them but do not depend upon either the government of the
Commonwealth or upon the governing bodies of their counties or
cities for their authority. Accordingly, we hold that the
sheriff of Russell County was not an "employee" of the
Commonwealth within the definitions contained in the VTCA. The
sheriff’s deputies and jailors were employees of the sheriff,
not of the Commonwealth. The sheriff had sole authority to
employ them, to discharge them, and to direct their work. They
were responsible to the sheriff and not to the government of the
Commonwealth. A fortiori, they were not "employees" of the
Commonwealth within the express waiver of sovereign immunity
contained in the VTCA.
Conclusion
For the foregoing reasons, the sovereign immunity of the
Commonwealth was not waived with respect to the plaintiff’s tort
claim and the circuit court correctly dismissed the case for
lack of subject-matter jurisdiction to adjudicate it.
Accordingly, we will affirm the judgment.
Affirmed.