dissenting.
I dissent from this latest demonstration of inconsistency in dealing with the question of sovereign immunity. The majority rejects the challenge to sovereign immunity in this case on the ground that to do otherwise would make “an immunity-liability patchwork” of the state highway system. I suggest, however, that the Court’s inconsistent decisions, to which the present opinion is a significant addition, have already made “an immunity-liability patchwork” of the tort law of Virginia. Why should the highway system be excluded from an otherwise all-encompassing maze of confusion?
In my view, the theory of sovereign immunity, based upon the medieval notion that the king could do no wrong, is an anachronism in a twentieth century democratic society. The Virginia Tort Claims Act, Code §§ 8.01-195.1 to -195.8 (Acts 1981, c. 449), has recently provided a waiver of immunity in a limited class of cases. Except as therein provided, however, the absolute immunity of the Commonwealth from liability for the negligence of its officers and employees continues. See James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864, 869 (1980).
Assuming, arguendo, that the Norfolk-Virginia Beach Expressway is a facility operated by an immune employer, I concede that Ogden is in an analogous status to the resident engineer who was held to enjoy immunity in Bowers v. Department of Highways, 225 Va. 245, 302 S.E.2d 511 (1983). The engineer-defendant in Bowers was alleged to have negligently designed and installed a culvert. Ogden, the superintendent-defendant in the present case, was alleged to have negligently failed to provide barriers and *243other traffic-control devices in the Norfolk-Virginia Beach Expressway.
For reasons stated in my dissenting opinion in Bowers, 225 Va. at 254, 302 S.E.2d at 516, I believe that Bowers and the majority opinion in the present case, while consistent with Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569 (1973), and Banks v. Sellers, 224 Va. 168, 294 S.E.2d 862 (1982), cannot be reconciled with Crabbe v. School Board of Albrite, 209 Va. 356, 164 S.E.2d 639 (1968), Short v. Griffitts, 220 Va. 53, 255 S.E.2d 479 (1979), and James v. Jane, 221 Va. 43, 282 S.E.2d 864 (1980). The negligent employee of an immune employer should be liable for his negligence, as we held in Crabbe, Short, and James. Therefore, Ogden in the present case should be answerable for his negligence even if his employer is immune.
In addition, the Norfolk-Virginia Beach Expressway is a “special account” project, financed by bonds issued by the Commonwealth payable from tolls and expressly not constituting obligations for which the full faith and credit of the Commonwealth are pledged. See Code §§ 33.1-267, et seq. The Commonwealth has thus been careful to disclaim liability for bonds issued in connection with “special account” projects such as this one. By doing so, the Commonwealth has been able to avoid the problems that would arise from financing important activities with general obligation bonds of the state. This prudent course of the Commonwealth is commendable. Nevertheless, in disclaiming responsibility for the present project, the Commonwealth should be held to have waived its right to claim immunity from tort liability. Therefore, I would overrule Elizabeth River Tunnel District v. Beecher, 202 Va. 452, 117 S.E.2d 685 (1961), in holding that the operator of a special project in performing an essential governmental function is immune from tort liability.
STEPHENSON, J., joins in dissent.