PRESENT: All the Justices
JULIA FRIDAY-SPIVEY
OPINION BY
v. Record No. 032315 JUSTICE G. STEVEN AGEE
September 17, 2004
CHARLES LEE COLLIER
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge
Julia Friday-Spivey, the plaintiff in a personal injury
action arising from a collision between her vehicle and a fire
truck, appeals from the judgment of the trial court holding that
the defendant, Charles Lee Collier, was protected by the
doctrine of sovereign immunity with regard to his alleged
negligence while operating the fire truck. The issue before us
is whether Collier’s driving of the fire truck, under the facts
of this case, required the exercise of judgment and discretion
sufficient to invoke the protection of sovereign immunity. We
conclude that it did not and therefore will reverse the judgment
of the trial court.
I. BACKGROUND AND PROCEEDINGS BELOW
At the time of the accident at issue, Friday-Spivey was
operating a vehicle westbound on Spring Mall Road in Fairfax
County. Collier, a fire technician employed by the Fairfax
County Fire and Rescue Department,1 was driving a fire truck
1
Although Friday-Spivey originally alleged that Collier was
employed by the Fire Department, the parties did not dispute
that he was in fact an employee of Fairfax County.
owned by the Greater Springfield Volunteer Fire Department (the
“Fire Department”) eastbound on Spring Mall Road. As Collier
attempted to turn left into a shopping mall parking lot, he
allegedly failed to yield the right of way to Friday-Spivey,
thereby colliding with her vehicle. As a result of the impact,
Friday-Spivey sustained personal injuries.
Friday-Spivey filed an action against Collier and the Fire
Department to recover damages for the injuries she sustained in
the accident. Both defendants filed pleas in bar. The trial
court sustained the Fire Department’s plea in bar and dismissed
it from the case with prejudice pursuant to the provisions of
Code § 27-23.6(B) in effect at that time.2
Testimony at the ore tenus hearing on Collier’s plea in bar
established that at the time of the accident, Collier was en
route to the shopping mall in response to a “Priority 2”
dispatch regarding an infant locked in a vehicle at that
2
In pertinent part, the prior version of that statute
authorized a county to “provide fire-fighting and rescue
services to its citizens by using both government-employed and
volunteer company or association firefighters and rescuers.” If
a county utilized such a system, the volunteer companies and
associations were “deemed an instrumentality of the county . . .
and as such exempt from suit for damages done incident to
providing fire-fighting and rescue services to the county
. . . .” Code § 27-23.6(B)(2000). Subsequent amendments have
not materially altered these provisions.
2
location. Collier knew nothing about the infant’s condition at
that time.
In responding to a Priority 2 call, Collier acknowledged
that according to Fairfax County Fire and Rescue Department
Standard Operating Procedures, he was required to proceed
without activating warning devices, i.e., “no lights and no
sirens,” and to obey all statutes governing the operation of
motor vehicles.3 Nonetheless, he had to “drop everything and
proceed to the call.” Collier’s duty, as a fire technician, was
to deliver the manpower and equipment needed to assist the
infant.
At the time of the accident, Collier was driving a pumper
truck with a crew of four: his captain, a paramedic, a fire
fighter, and himself as the driver. While on duty, this crew
was required to stay together at all times in case they had to
respond to a dispatch. According to Collier, a pumper truck
weighs 40,000 pounds. He received specific training to drive
that vehicle, including both written and “over the road”
examinations. When asked about the decisions he was required to
make in responding to the Priority 2 dispatch on the day of the
accident, Collier stated, “Well, the route of travel, the
3
In contrast, a “Priority 1” call means that there is a
“[g]reat potential for loss of life or serious injury.”
Response to a Priority 1 call requires the use of warning
equipment.
3
address, I am driving a large piece of equipment, it’s pretty
heavy, so I have to be extra careful when I’m driving the fire
truck, it’s not like driving my personal car on the road.
Stopping distances, and so forth.” He also testified that he
“decided to take the quickest route possible” because an infant
was locked in a vehicle and “we just [did not] know what to
expect when we [got] there.”
After the hearing on Collier’s plea in bar, the trial court
sustained that plea, finding that Collier was entitled to
sovereign immunity. The court subsequently entered an order
dismissing Collier from the action with prejudice. We awarded
Friday-Spivey this appeal.
II. ANALYSIS
This Court has outlined a four-factor test for determining
whether an individual working for an immune governmental entity,
such as a county employee like Collier, is entitled to the
protection of sovereign immunity. James v. Jane, 221 Va. 43,
53, 282 S.E.2d 864, 869 (1980); Messina v. Burden, 228 Va. 301,
313, 321 S.E.2d 657, 663 (1984). The parties agree Collier
meets three of the four factors and the sole issue is the fourth
factor: “whether the act in question involved the exercise of
4
discretion and judgment.”4 Colby v. Boyden, 241 Va. 125, 129,
400 S.E.2d 184, 187 (1991).
Friday-Spivey argues that the facts of this case are
governed by this Court’s holding in Heider v. Clemons, 241 Va.
143, 400 S.E.2d 190 (1991). In Heider, a deputy sheriff
collided with a motorcycle as he was leaving a residence where
he had just served judicial process. 241 Va. at 144, 400 S.E.2d
at 190. Heider argued “that, as a deputy sheriff who regularly
and necessarily operated an automobile to perform his legal duty
of serving judicial process, he was entitled to the sovereign
immunity defense with respect to the operation of the
automobile.” Id., 400 S.E.2d at 190-91. We disagreed, holding
that Heider was not entitled to sovereign immunity under the
circumstances of the case because “the simple operation of an
automobile did not involve special risks arising from the
governmental activity, or the exercise of judgment or discretion
about the proper means of effectuating the governmental purpose
of the driver’s employer.” Id., 400 S.E.2d at 191. In that
case, the deputy sheriff was like any other person driving a car
4
The four factors are: (1) the function performed by the
employee, (2) the extent of the state’s interest and involvement
in that function, (3) the degree of control and direction the
state exercises over the employee, and (4) whether the act
performed involves the use of judgment and discretion. James v.
Jane, 221 Va. at 53, 282 S.E.2d at 869 (1980).
5
who “must make myriad decisions.” Id. The duty of care in
ordinary driving situations “is a ministerial obligation.” Id.
Collier distinguishes Heider in several respects. The
deputy sheriff in that case had completed his governmental
purpose and was leaving the scene without any urgency. In
contrast, Collier was on his way to accomplish the governmental
purpose of delivering the manpower and equipment necessary to
rescue an infant locked in a car. Collier cites as examples of
discretion and judgment his determination of the route to be
taken and the maneuvering of the 40,000-pound pumper truck
through traffic. Collier also notes that, unlike the police car
in Heider, a 40,000-pound pumper truck requires specialized
training to operate. Collier essentially argues that he is
entitled to sovereign immunity because the inherent difficulty
and special skills required in operating a specialized piece of
equipment (the pumper truck) means he “is not like any other
driver in routine traffic.” Under the facts of this case, we
disagree.
In Stanfield v. Peregoy, 245 Va. 339, 429 S.E.2d 11 (1993),
we considered whether a city employee driving “a combination
snow plow/salt truck,” was entitled to sovereign immunity in an
action for negligence occurring while plowing and salting city
streets during a snowstorm. Id. at 341, 429 S.E.2d at 12.
While it is true that in affirming the trial court’s grant of
6
sovereign immunity we commented that “the defendant had
completed a special course of instruction given to the employees
selected to operate the equipment,” id. at 342, 429 S.E.2d at
12, we implicitly rejected a rationale based on the use of
special equipment or specialized training by a government
employee as a basis for decision:
Perhaps if this accident had happened as
defendant was driving his truck en route to the
area he was assigned to plow and salt, or if it
occurred when he was returning to his
Department’s headquarters after completing his
function of plowing and salting, he would have
been engaged in ‘the simple operation’ of the
truck ‘in routine traffic,’ a ministerial act.
Id. at 344, 429 S.E.2d at 13.
Likewise, in Wynn v. Gandy, 170 Va. 590, 197 S.E. 527
(1938),
the driver of a school bus asserted the defense
of sovereign immunity on the basis that operation
of the bus was an act undertaken on behalf of the
government. We held that sovereign immunity was
not available to the bus driver, stating that the
defense does not apply to ‘the performance of
duties which do not involve judgment or
discretion in their performance but which are
purely ministerial.’
Heider, 241 Va. at 145, 400 S.E.2d at 191. In Wynn we were not
concerned with whether driving a school bus “sufficiently large
to accommodate . . . from ninety to 112 children,” required any
special training, despite the fact that “the bodies of large
buses of this type are extended on both sides” such that the
7
driver “could not see persons at either side [of the bus] after
the front of the bus had passed” and the street was filled with
“rollicking and excited children.” Wynn, 170 Va. at 593-94, 197
S.E. at 528.
Despite a natural inclination to classify the report of a
child in a locked car as an “emergency,” the facts of this case
do not support the conclusion that Collier’s driving involved
the exercise of judgment and discretion beyond that required for
ordinary driving in routine traffic situations. Collier
testified that “Priority 2 calls are considered public service
calls” involving “[a]nything from a cat in a tree to a leaky
water pipe.” Specifically, Collier confirmed that “when [he]
got this Priority 2 call, this was a public service call.”5
During his deposition Collier also admitted that, based on
what he knew at the time, “there was no danger” involved in the
call to which they were responding and he understood that “when
[he] got a [Priority 2] call, [he was] to respond in a
nonemergency manner and conform to all the traffic regulations.”
When asked on direct examination whether “there [was] any
difference in the way you respond to a call for a cat in a tree
versus an infant locked in a car, according to your
regulations,” Collier responded: “My regulations, no.” And
5
The Fairfax County fire department receives between 4,500
and 5,000 public service calls a year.
8
although Collier had to “drop everything and proceed to the
call,” he specifically testified that was true for all calls
“whether you get either a priority one or a priority two call.”
As established by his own testimony, Collier was driving in
a nonemergency manner without lights and sirens, to a “public
service call” during which he was required to obey all traffic
regulations. The special skill and training required to operate
a fire truck under these circumstances is not the exercise per
se of judgment and discretion for purposes of sovereign
immunity. To find otherwise would not comport with our prior
decisions, which have held that sovereign immunity does not
extend to “ordinary driving situations,” Heider, 241 Va. at 145,
400 S.E.2d at 191, in “routine traffic.” Colby, 241 Va. at 129,
400 S.E.2d at 187. Thus, there were no “special risks” inherent
in Collier’s task as existed in cases such as Colby (police
officer in hot pursuit in a high speed chase with emergency
lights and siren activated), or National R.R. Passenger Corp. v.
Catlett Volunteer Fire Co., 241 Va. 402, 404 S.E.2d 216 (1991)
(fire truck en route to a burning vehicle with emergency lights
and siren activated).
Collier’s suggestion that a controlling factor is whether a
government employee received specialized training in the
operation of a special or heavy duty vehicle (e.g., tractor-
trailer, fire truck, school bus, dump truck, snow plow, etc.)
9
has been effectively rejected in prior decisions. Such a rule
would create a blanket immunity as a matter of law whenever that
vehicle was used to perform a governmental function. The
analysis by this Court in prior decisions demonstrates that this
suggested approach has been rejected. Immunity was rejected in
Wynn even though the vehicle was oversized and specialized, a
result noted with approval more recently in Heider. The
comments by this court in Stanfield quoted above also make it
clear that not all driving of a specialized vehicle will be
immune.
Obviously, there are situations where responding to a child
locked in a car is under such exigent circumstances that the
government employee responding must use a degree of judgment and
discretion beyond ordinary driving situations in routine traffic
to accomplish that governmental mission. On this record,
however, that is not this case. Collier was in routine traffic
under a mandate “to respond in a nonemergency manner and conform
to all the traffic regulations.” Nothing in this record
reflects that any special characteristic of the fire truck had
any nexus whatsoever to the accident. Collier’s driving was a
ministerial act requiring no significant judgment and discretion
beyond that of ordinary driving in routine traffic.
III. CONCLUSION
10
For the reasons previously stated, we conclude that Collier
did not exercise judgment and discretion beyond that necessary
in an ordinary driving situation − a ministerial act. As such,
he is not entitled to sovereign immunity for his alleged
negligence. Accordingly, the judgment of the trial court will
be reversed and the case remanded to the trial court for further
proceedings not inconsistent with this opinion.
Reversed and remanded.
JUSTICE KINSER, with whom JUSTICE KOONTZ joins, dissenting.
Because I conclude that driving a 40,000-pound fire truck
to a shopping mall in response to a dispatch involving an infant
locked in a vehicle required the exercise of judgment and
discretion in order to effectuate the governmental purpose of
providing rescue services, I respectfully dissent.
In Virginia, the question whether an individual working for
an immune governmental entity, such as a county employee like
Charles Lee Collier, is entitled to the protection of sovereign
immunity is answered by applying a four-part test first
enunciated in James v. Jane, 221 Va. 43, 53, 282 S.E.2d 864, 869
(1980) and reiterated in subsequent cases. Messina v. Burden,
228 Va. 301, 313, 321 S.E.2d 657, 663 (1984). The four factors
are: “(1) the nature of the function the employee performs; (2)
the extent of the government’s interest and involvement in the
function; (3) the degree of control and direction exercised over
11
the employee by the government; and (4) whether the act in
question involved the exercise of discretion and judgment.”
Colby v. Boyden, 241 Va. 125, 129, 400 S.E.2d 184, 186-87
(1991); accord Nationwide Mut. Ins. Co. v. Hylton, 260 Va. 56,
63, 530 S.E.2d 421, 424 (2000); Stanfield v. Peregoy, 245 Va.
339, 342, 429 S.E.2d 11, 12 (1993).
In the present case, the plaintiff, Julia Friday-Spivey
contends, and the majority agrees, that the fourth prong of the
test was not satisfied. The majority concludes that Collier
“did not exercise judgment and discretion beyond that necessary
in an ordinary driving situation − a ministerial act.” In
reaching that conclusion, the majority relies primarily on the
fact that the dispatch to rescue an infant locked in a vehicle
was categorized as “Priority 2,” as would be a dispatch
concerning a cat in a tree, and that the situation was not an
actual “emergency.”
Although Collier acknowledged that, in responding to a
Priority 2 dispatch, he was required by regulation to proceed
without activating warning devices and to obey all statutes
governing the operation of motor vehicles, he testified that he
nevertheless “decided to take the quickest route possible”
because an infant was locked in a vehicle and “we just [did not]
know what to expect when we [got] there.” Collier stated,
“[T]here [was] a potential of injury or loss of life.
12
Especially with a child in a car.” Because of that potential, I
believe that responding to a dispatch involving an infant in a
locked vehicle is fundamentally different than responding to
public service calls in general and that the former, unlike the
latter, requires the exercise of discretion and judgment to
effectuate the governmental purpose of providing rescue
services.
The fourth prong of the James test has been determinative
in several of this Court’s cases. A review of those cases
illustrates that whether the act in question involves the
exercise of judgment and discretion generally turns on whether
effectuating the governmental purpose embraces “special risks.”
Colby, 241 Va. at 129, 400 S.E.2d at 187. For example, in
Colby, a police officer, with emergency blue lights activated,
was pursuing, in a high-speed chase, a motorist who had
proceeded through a red traffic light. Id. at 127, 400 S.E.2d
at 185. Although the police officer’s municipal employer had
promulgated guidelines governing responses to emergency
situations, we recognized that such guidelines could not
“eliminate the requirement that a police officer, engaged in the
delicate, dangerous, and potentially deadly job of vehicular
pursuit, must make prompt, original, and crucial decisions in a
highly stressful situation.” Id. at 129, 400 S.E.2d at 187.
The police officer, unlike a driver in routine traffic, had to
13
“make difficult judgments about the best means of effectuating
the governmental purpose by embracing special risks in an
emergency situation.” Id.
Similarly, in National R.R. Passenger Corp. v. Catlett
Volunteer Fire Co., 241 Va. 402, 405, 404 S.E.2d 216, 217
(1991), a volunteer fireman was driving a fire truck, with
emergency equipment activated, to the site of a car fire on
private property. The fireman failed to stop before crossing
railroad tracks as required by both state law and certain
internal safety policies of the volunteer fire company that
owned the fire truck. Id. As the fire truck proceeded over the
railroad tracks, it collided with a train. Id. Citing our
decision in Colby, we could not “logically distinguish the act
of crossing a railroad track without stopping in order to
extinguish a fire from running a red light in order to apprehend
a traffic offender.” Id. at 413, 404 S.E.2d at 222.
Effectuating the governmental purpose in both situations
involved “special risks.” See also Smith v. Settle, 254 Va.
348, 352-53, 492 S.E.2d 427, 429-30 (1997) (ambulance driver
traveling with siren and red lights activated to a location
where he could establish radio contact with his other squad
members was entitled to sovereign immunity although he actually
had not been dispatched to the scene of an emergency when he was
involved in a motor vehicle accident); Hylton, 260 Va. at 64,
14
530 S.E.2d at 424 (police officer exercised discretion and
judgment when he decided to pursue a motor vehicle operator who
had committed a traffic infraction even though the officer was
just attempting to begin that pursuit when he collided with
another vehicle).
The importance of “special risks” in our analysis of the
fourth prong of the James test is further demonstrated by two
cases involving school bus drivers. In Wynn v. Gandy, 170 Va.
590, 591, 197 S.E.2d 527, 527 (1938), the driver of a school bus
was proceeding from a filling station where the bus had been
serviced to a school for the purpose of picking up children at
the school. As the children were crowding around and running
after the moving bus, one student was shoved into the bus,
causing fatal injuries. Id. We did not afford the school bus
driver sovereign immunity because the defense is not available
for “the performance of duties which do not involve judgment or
discretion in their performance but which are purely
ministerial.” Id. at 595, 197 S.E.2d at 529. In contrast, we
held in Linhart v. Lawson, 261 Va. 30, 36, 540 S.E.2d 875, 878
(2001), that a school bus driver’s act of transporting children
involved discretion and judgment. The factual difference
between Wynn and Linhart was that the driver in Linhart was
actually transporting children at the time of the accident at
issue. See Stanfield, 245 Va. at 345, 429 S.E.2d at 14 (noting
15
that the school bus driver in Wynn claimed sovereign immunity
merely because he was operating a school bus not because he was
actually transporting children at the time of the accident).
The “special risks” connected with the act of transporting
school children in a bus are apparent.
We discussed the concept of “special risks” again in
Stanfield. There, a city employee was operating a city truck
and spreading salt during a snowstorm when the truck skidded on
ice into an intersection and collided with a bus. Id. at 342,
426 S.E.2d at 12. The city driver had completed a special
course of instruction for employees who operated snow removal
equipment and was required to obtain a chauffeur’s license,
learn defensive driving techniques, and complete at least 16
hours of on-the-job training. Id. In effectuating the
governmental purpose of snow removal, the city employee had to
determine whether to apply salt to a particular street and, if
so, how much salt to spread, whether to plow the snow away, or
whether to do both. Id. We concluded that, at the time of the
accident, the city employee was not involved in “the simple
operation” of the city truck, id. at 344, 429 S.E.2d at 13
(quoting Heider v. Clemons, 241 Va. 143, 145, 400 S.E.2d 190,
191 (1991)), “nor was he driving ‘in routine traffic.’ ” Id.
(quoting Colby, 241 Va. at 129, 400 S.E.2d at 187). “[T]he
conduct of driving and spreading salt combined as an integral
16
part of the governmental function of rendering the city streets
safe for public travel.” Id. Thus, operation of the city truck
“involved special risks arising from the governmental activity
and the exercise of judgment or discretion about the proper
means of effectuating the governmental purpose.” Id.
Conversely, we found no “special risks” arising from the
operation of an automobile by a deputy sheriff when he collided
with a motorcycle as he was leaving a residence where he had
just served judicial process. Heider, 241 Va. at 145, 400
S.E.2d at 191. Recognizing that every driver of a vehicle makes
“myriad decisions,” which in ordinary driving situations are
“ministerial obligation[s],” we held that “[t]he defense of
sovereign immunity applies only to acts of judgment and
discretion which are necessary to the performance of the
governmental function itself.” Id. There, the deputy sheriff’s
simple operation of the police vehicle “did not involve special
risks arising from the governmental activity, or the exercise of
judgment or discretion about the proper means of effectuating
the governmental purpose.” Id.
Unlike the deputy sheriff in Heider, Collier was not
involved in the simple operation of a fire truck nor was he
driving in an ordinary situation. As in Colby, Collier’s
employer had established regulations governing the manner in
which he had to operate the pumper truck in responding to
17
different types of dispatches. But, those guidelines did not
eliminate the need for Collier to make prompt, crucial decisions
about the proper means of effectuating the governmental purpose
of delivering the manpower and equipment needed to rescue an
infant locked in a vehicle. He had to accomplish that purpose
by operating a 40,000-pound pumper truck. Collier explained
that he needed to be “extra careful” when driving the vehicle
because of its size and the distances required to stop safely.
An ordinary person without special training would not be allowed
to operate that type of fire truck. Collier had the special
training. Collier further explained that, since he did not know
the condition of the infant, he “decided to take the quickest
route possible.” Given these facts, I conclude that the act of
operating the pumper truck in conjunction with the act of
providing rescue services involved “special risks” and the
exercise of judgment and discretion as to the most effective
means of accomplishing the governmental purpose. Surely, if
“special risks” attended the operation of the salt truck in
Stanfield, the same is true here when Collier was responding to
a dispatch concerning an infant locked in an automobile.
For these reasons, I respectfully dissent and would affirm
the judgment of the circuit court.
18