Present: All the Justices
FRANCIS LINHART, JR.
v. Record No. 000291 OPINION BY JUSTICE ELIZABETH B. LACY
January 12, 2001
THOMAS LAWSON, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge
Francis Linhart, Jr., was injured when the vehicle he was
driving was struck by a school bus driven by Thomas Lawson, an
employee of the School Board of the City of Norfolk (School
Board). Linhart filed a motion for judgment against Lawson
and the School Board alleging that Lawson's negligence
resulted in Linhart's injuries. Lawson and the School Board
filed special pleas in bar asserting the defense of sovereign
immunity. The trial court granted those pleas and dismissed
Linhart's motion for judgment, holding that Lawson was
entitled to sovereign immunity for acts of simple negligence
under the standard set out in Messina v. Burden, 228 Va. 301,
321 S.E.2d 657 (1984), and that, because the School Board's
liability "is entirely dependent upon, and derived from"
Lawson's negligence, the motion for judgment failed because it
did not allege gross negligence against both the School Board
and Lawson.
Linhart appeals the judgment of the trial court,
asserting (1) that the School Board's immunity was abrogated
by Code § 22.1-194 under the circumstances of this case and
(2) that Lawson was not entitled to immunity because Code
§ 22.1-194 also abrogated Lawson's immunity, or,
alternatively, Lawson was not entitled to immunity under the
holding in Messina v. Burden. For the reasons that follow, we
conclude that the trial court erred in sustaining the School
Board's plea of sovereign immunity but correctly held that
Lawson was entitled to immunity for acts of simple negligence.
I. Immunity of the School Board
Linhart first argues that pursuant to Code § 22.1-194,
the School Board is not entitled to the defense of sovereign
immunity under the circumstances of this case. That section
provides, in pertinent part, that if a school board
is the owner, or operator through medium of a
driver, of, or otherwise is the insured under the
policy upon, a vehicle involved in an accident, the
. . . school board shall be subject to action up to,
but not beyond, the limits of valid and collectible
insurance in force to cover the injury complained of
or, [if self-insured under] § 22.1-190, up to but
not beyond the amounts of insurance required under
subsection A of § 22.1-190 and the defense of
governmental immunity shall not be a bar to action
or recovery. . . . The . . . school board may be
sued alone or jointly with the driver, provided that
in no case shall any member of a school board be
liable personally in the capacity of a school board
member solely.
We have held that this statute abrogates the immunity of a
school board for acts of simple negligence "to a limited
degree" and when the conditions of the statute are met, the
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defense of sovereign immunity will "not bar an action . . .
for recovery of damages in an amount up to the limits of the
insurance policy." Wagoner v. Benson, 256 Va. 260, 262-64,
505 S.E.2d 188, 188-90 (1998). At the time of the accident in
this case, the School Board was self-insured in the amount of
at least $50,000 for injury to one person pursuant to Code
§ 22.1-190. Therefore, the doctrine of sovereign immunity
does not bar this action against the School Board to the
extent of the limits of the School Board's self-insurance.
The School Board argues, however, that the trial court
nevertheless was correct in dismissing the motion for judgment
against the School Board. Any liability it may have is solely
vicarious liability, the School Board argues, and, under
common law principles, the standard of liability applied to
Lawson and the School Board must be the same. Because Lawson
can only be liable for acts of gross negligence, the School
Board argues that it too can only be liable for gross
negligence. Therefore, the School Board concludes, the trial
court correctly dismissed the motion for judgment because the
motion did not allege gross negligence against the School
Board or Lawson. We disagree.
The common law principle that the liabilities of
principals and agents are coterminous is not applicable when
altered by the General Assembly. Schwartz v. Brownlee, 253
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Va. 159, 166, 482 S.E.2d 827, 831 (1997). In Schwartz, we
considered Code § 8.01-581.15, which imposes a cap on medical
malpractice recovery but limits the cap to health care
providers. Therefore, even though the employer's liability
was predicated on the acts of its employee, a health care
provider, the non-health care employer was not entitled to the
limitation of the cap. Code § 8.01-581 abrogated the common
law principle that the liabilities of agent and principal are
coterminous. Id. at 166-67, 482 S.E.2d at 831-32.
In this case, as we have said, Code § 22.1-194 subjects
the School Board to limited liability for injuries incurred
through the acts of its employee school bus drivers. The
statute does not require that the school board and its
employee be sued jointly and in fact allows a plaintiff to
proceed solely against a school board. As in Schwartz, we
conclude that, in enacting Code § 22.1-194, the General
Assembly created an exception to the common law principle
recited above and imposed liability on a school board for
simple negligence, even if its employee is liable only for
acts of gross negligence. Therefore, the trial court erred in
dismissing Linhart's motion for judgment against the School
Board for failure to plead gross negligence.
II. Immunity of Bus Driver
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Linhart argues that Lawson was not immune from liability
for acts of simple negligence because, in addition to
abrogating the immunity of the School Board, Code § 22.1-194
also abrogated the immunity of Lawson, the School Board's
employee. * Linhart bases his position on the statutory
language which provides that the school board may be sued
alone "or jointly with the driver" and on the fact that the
only exception to personal liability set out in the statute
relates to that of a school board member in his official
capacity. We disagree with Linhart.
Abrogation of the common law requires that the General
Assembly plainly manifest an intent to do so. Schwartz, 253
Va. at 166, 482 S.E.2d at 831. Nothing in Code § 22.1-194
clearly and unambiguously removes the common law protection of
sovereign immunity from bus drivers employed by school boards.
Governmental employees have always been subject to suit for
*
Relying on Wynn v. Gandy, 170 Va. 590, 197 S.E. 527
(1938), Linhart also argues that school board employees,
specifically school bus drivers, had no common law immunity at
the time the predecessor to Code § 22.1-194 was enacted in
1944 and therefore the enactment of that section had no effect
on the immunity of school bus drivers. Regardless of a school
bus driver's status in 1944, the common law immunity of school
board employees, which includes bus drivers, has been
recognized. See Stanfield v. Peregoy, 245 Va. 339, 345, 429
S.E.2d 11, 14 (1993)(distinguishing "simple operation" of a
school bus in Wynn from the "governmental duty of transporting
children"); see also Lentz v. Morris, 236 Va. 78, 372 S.E.2d
608 (1988)(high school teacher); Banks v. Sellers, 224 Va.
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gross negligence and thus the language in the statute
authorizing a suit against employee and school board jointly
does no more than recognize that such an employee is amenable
to suit. Without more, the language of the statute is
insufficient to convey a plainly manifest intent to abrogate a
governmental employee's immunity for acts of simple
negligence.
We are cognizant of the fact that in enacting the
Virginia Tort Claims Act, Code §§ 8.01-195.1 to -195.9, the
General Assembly included language specifically preserving the
immunity of governmental employees. Code § 8.01-195.3. We do
not believe that the failure to use similar language in Code
§ 22.1-194 requires the conclusion that the immunity of the
school bus driver was not preserved. An affirmative statement
of immunity reinforces a legislative intent not to abrogate
such immunity. However, such language does not impose an
additional condition that immunity is abrogated in the absence
of an affirmative statement preserving such immunity.
In light of this holding, the question next arises
whether the legislation effectively precludes school bus
drivers from claiming the protection of sovereign immunity
when the school board employer is not entitled to claim
168, 294 S.E.2d 862 (1982)(school superintendent and
principal).
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governmental immunity under the specific circumstances
detailed in the statute. As Linhart notes, in both Messina v.
Burden and James v. Jane, 221 Va. 43, 282 S.E.2d 864 (1980),
we stated that, an individual claiming sovereign immunity must
be employed by an immune governmental entity. Messina, 228
Va. at 312, 321 S.E.2d at 663; James v. Jane, 221 Va. at 51,
282 S.E.2d at 868. However, we conclude that neither our
prior decisions nor the enactment of Code § 22.1-194 requires
the result advocated by Linhart.
As a general matter, school boards are immune
governmental entities. Kellam v. Sch. Bd. of the City of
Norfolk, 202 Va. 252, 256, 117 S.E.2d 96, 98-99 (1960). The
limited abrogation of this immunity in the specific
circumstances described in Code § 22.1-194 does not affect the
general status of a school board as a governmental entity
entitled to the immunity of the sovereign. Applying the tests
enunciated in Messina v. Burden and James v. Jane to preclude
Lawson's immunity because the School Board is not an "immune
governmental entity" under Code § 22.1-194 would be
inconsistent with our determination that Code § 22.1-194 does
not abrogate an employee bus driver's immunity. Furthermore,
such a conclusion would effectively abrogate the employee's
immunity by implication, a result that we have rejected. See
Schwartz, 253 Va. at 166, 482 S.E.2d at 831.
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Finally, Linhart argues that the trial court erred in its
application of the four-part test set out for employee
immunity recited in Messina v. Burden. Again we disagree. As
the trial court observed, the transportation of children in a
school bus is a governmental function in which the government
has a substantial interest and over which the government
exercises significant control as reflected in the regulations
issued regarding the qualifications for and requirements of
the job. Furthermore, the act complained of, transporting
school children, involved discretion and judgment. Cf.
Stanfield v. Peregoy, 245 Va. 339, 344-45, 429 S.E.2d 11, 14
(1993). Accordingly, we reject Linhart's challenge to the
trial court's determination that Lawson was entitled to
immunity for acts of simple negligence under the standards set
out in Messina v. Burden.
III. Conclusion
In summary, we conclude that the trial court erred in
sustaining the School Board's plea of sovereign immunity
because Code § 22.1-194 subjects a school board to suit for
acts of simple negligence under the limited circumstances
outlined by that statute. The trial court correctly concluded
that Lawson's immunity from liability for his acts of simple
negligence was not abrogated by Code § 22.1-194. Finally, the
trial court did not err in concluding that under the standards
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set out in Messina v. Burden and James v. Jane, Lawson was
entitled to immunity for his acts of simple negligence.
Accordingly, we will reverse the judgment of the trial court
sustaining the School Board's plea of sovereign immunity and
remand the case for further proceedings against the School
Board. We will affirm the judgment of the trial court
sustaining Lawson's plea of sovereign immunity.
Affirmed in part,
reversed in part,
and remanded.
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