PRESENT: All the Justices
ROBBY NIESE
OPINION BY
v. Record No. 012007 JUSTICE DONALD W. LEMONS
June 7, 2002
CITY OF ALEXANDRIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
In this appeal, we consider whether the trial court erred
in sustaining the City of Alexandria’s (the “City”) special plea
of sovereign immunity and dismissing Robby Niese’s (“Niese”)
motion for judgment.
I. Facts and Proceedings Below
The special plea of sovereign immunity was submitted to the
trial court on the pleadings. “[W]here no evidence is taken in
support of a plea in bar, the trial court, and the appellate
court upon review, consider solely the pleadings in resolving
the issue presented.” Lostrangio v. Laingford, 261 Va. 495,
497, 544 S.E.2d 357, 358 (2001). The facts as stated in the
pleadings by the plaintiff are taken as true for the purpose of
resolving the special plea. Id.
Niese’s pleadings allege that during the summer of 1998,
Niese was experiencing behavioral difficulties with her son,
Steven Niese (“Steven”). Steven was admitted to This Way House,
a group home and counseling center that provided services to
troubled families. In August 1998, Niese met Raleigh Harsley
(“Harsley”), a City police officer, and sought his help with her
son’s problems. On September 1, Harsley visited Niese’s place
of employment in a marked police cruiser, where he told Niese
that he wanted to “make a game plan for Steve.” Harsley agreed
to take Steven to the “Sports Orientation Night” at Steven’s
high school that evening.
Niese arrived at Steven’s high school later that evening
but she did not see her son at the event. When she located
Harsley in the parking lot and inquired about her son, Harsley
directed her into his marked police cruiser. Niese complied and
when she again inquired about Steven, Harsley told Niese he
would follow her to her home where they could discuss her son.
After arriving at Niese’s home, Harsley asked Niese to accompany
him to a restaurant “to discuss her son.” Niese rode in
Harsley’s marked police cruiser to the restaurant.
Niese’s pleadings allege that Harsley subsequently drove
her home and “insisted that he accompany Niese to her
apartment.” At the door, Harsley demanded to be admitted to the
apartment in order to inspect Steven’s bedroom. Niese allowed
Harsley to enter the apartment, but when he asked to see Niese’s
bedroom, Niese refused and attempted to escort him from her
apartment. At the front door, “Harsley suddenly grabbed Niese,”
overpowered her, and removed some of her clothing. Niese’s
pleadings alleged that over her repeated protests, Harsley
2
forcibly assaulted and raped her and then immediately exited the
apartment.
Two days later, on September 3, Niese reported the rape,
and the fact that the perpetrator was a City police officer, to
a counselor with the City’s Department of Mental Health. On
September 6, she reported the rape to Chuck Selner, an
administrator at This Way House.
On September 18, Harsley arrived at Niese’s apartment
complex in his marked police cruiser. Niese’s pleadings allege
that Harsley gained entrance to her apartment “by means of
intimidation,” where he raped Niese for the second time. During
the middle to latter part of September, Niese learned that she
was pregnant as a result of Harsley’s rape. She informed
Harsley of her pregnancy, and Harsley “insisted that Niese
terminate the pregnancy.” Harsley began contacting Niese by
telephone and in person at Steven’s high school, and he informed
Niese that he would “not allow her to hurt him.”
On October 2, in response to a demand from Harsley, Niese
met him at the City Police Department to discuss the pregnancy.
Niese’s pleadings allege that Harsley then drove her to
Washington D.C. and stopped his vehicle in a park area, where he
raped Niese for the third time.
On October 5, Niese sought assistance from the Office on
Women, Sexual Assault Response and Awareness Program (“SARA”), a
3
department under the authority and supervision of the City.
Niese reported to Sara Donahue (“Donahue”), the SARA program
director, that she had been raped by a City police officer.
Donahue reported Niese’s complaint to the City Police Department
on October 7.
Also on October 7, Niese’s pleadings allege that while
seeking medical care related to her pregnancy, she reported the
rapes and the identity of the perpetrator to the Alexandria
Women’s Health Clinic. Despite Niese’s numerous reports to
various City agencies, on October 8 Harsley arrived at Niese’s
apartment, directed her into his vehicle, drove to an empty
parking lot in Arlington, and raped Niese for the fourth time.
On December 8, as a result of arrangements made by Donahue,
Niese spoke with detectives from the City Police Department to
discuss her original complaint of rape by Harsley. The City
Police Department conducted an investigation of Niese’s
complaint, and as a result Harsley was terminated from his
employment on February 3, 2000.
On August 31, 2000, Niese filed a motion for judgment
against Harsley and the City, seeking compensatory and punitive
damages for sexual assault and battery, intentional infliction
of emotional distress, and negligent retention. In Count I,
Niese alleged that Harsley, while acting as an employee and/or
agent for the City, repeatedly sexually assaulted her. She
4
maintained that “[a]t all times relevant herein, Harsley was an
employee of the City and was clothed with the authority of an
Alexandria police officer. . . . [and he] was entrusted by the
City with a marked Alexandria police cruiser,” which he drove
during many of his contacts with her. As a direct and proximate
result of the sexual assaults, Niese alleged that she suffered
severe and permanent emotional and mental injuries.
In Count II, she alleged that Harsley, while acting as an
employee of the City, “through intentional threats and
intimidation, produced fear of severe bodily injury to Niese and
her son.” She further alleged that Harsley “perpetrated
outrageous and intolerable acts upon [her], which were offensive
to the generally accepted standards of decency and morality.”
Niese alleged that she suffered “severe and permanent emotional
distress” as the direct and proximate result of Harsley’s
conduct.
In Count III, Niese claimed that the City negligently
retained Harsley as an employee after she sought assistance from
the Department of Mental Health, a department of the City, and
from SARA, another City department. Niese alleged that the City
had either actual or constructive notice of the rapes and sexual
assaults perpetrated by Harsley, and the City failed to exercise
ordinary care in the investigation of her reports. She further
alleged that the City failed to properly train its employees to
5
handle sexual assault and rape complaints. As a direct and
proximate result of the City’s negligent retention of Harsley,
Niese alleged that she was repeatedly raped and suffered from
severe and permanent emotional and mental injuries.
In Count IV, Niese sought punitive damages for the “acts
and omissions of Harsley, while acting as an employee and/or
agent for the City, and while clothed with the authority of an
Alexandria police officer, and the acts and omissions of the
City, by and through its employees and agents.” Niese alleged
that these acts and omissions constituted “willful, wanton and
malicious” conduct and demonstrated a “conscious and utter
disregard of Niese’s rights, health and safety.”
The City filed a special plea of sovereign immunity and
asserted that the “maintenance and operation of a municipal
police force is a governmental function, and a city is immune
from lawsuits alleging negligence, including intentional torts
in the provision of police service.”
By letter opinion dated December 21, 2000, the trial court
sustained the City’s special plea of sovereign immunity to
Counts I through III. The court noted that the doctrine of
sovereign immunity protected the municipality from allegations
of negligence by its police officers and held that “[i]t is
generally accepted that the sovereign is immune from suit for
the intentional, as well as negligent, torts of its employees
6
engaged in governmental functions.” On February 12, 2001, the
trial court entered a consent order granting Niese leave to
amend her pleadings.
Niese filed her amended motion for judgment on February 14,
2001. In the amended motion she included Counts I through IV of
the original motion for judgment and added two additional
counts: Count V “Violation of Statutory Duties” and Count VI
“Punitive Damages for Violation of Statutory Duties.”
In Count V, Niese argued that the City’s employees violated
Code § 63.1-55.3, which placed an affirmative duty upon the
Department of Mental Health counselor to whom Niese had reported
the rape to immediately report the matter to the local law
enforcement agency. According to Niese, no report was ever
generated and because the employees and staff of the Department
of Mental Health were acting as agents and employees of the
City, the City failed to perform its statutory duties pursuant
to Code § 63.1-55.3. Niese maintained that the reporting
requirements were “ministerial not discretionary.” 1 Count VI
requested punitive damages for the violations alleged in Count
V.
The City filed a special plea of sovereign immunity to the
amended motion for judgment. In response to the allegation of a
7
violation of statutory duties, the City argued that “the
provision of counseling and mental health care services by a
municipal corporation to its citizens is the essence of the
promotion of public health and well being, and therefore, is a
governmental function.” Accordingly, the City maintained that
it was immune from any and all liability arising out of the
allegedly negligent failure by City employees to report the
assaults.
By letter opinion dated May 23, 2001, the trial court
sustained the City’s special plea of sovereign immunity to
Niese’s amended bill of complaint. The trial court held that
the City was performing a governmental function when providing
the mental health counseling and treatment; therefore, the trial
court held that the City would be immune from suit even if its
employees were not immune. The court stated:
Assuming, as the Court has here, that the
[City] employees failed in the performance of a
ministerial duty [to report under the
statutes], the only way that the City itself
could be liable is by the application of the
doctrine of respondeat superior. To impose
liability upon the municipality or state for
the negligent acts of its employees in the
performance of ministerial duties while engaged
in governmental functions emasculates the
sovereign immunity doctrine. See, Ashbury v.
City of Norfolk, 152 Va. 278 [147 S.E. 223]
(1929); James v. Jane, 221 Va. 43 [282 S.E.2d
1
Niese further argued that alleged reporting requirements
under Code § 37.1-84.1 were violated. She has abandoned this
argument on appeal.
8
864] (1980), wherein the Court distinguishes
between the sovereign and its employees in
imposing liability under these circumstances.
The trial court entered an order memorializing its decision on
June 12, 2001. Having previously dismissed the City as a
defendant to Counts I – III 2 of the amended motion for judgment,
the trial court sustained the City’s special plea of sovereign
immunity to Counts V and VI of the amended motion and dismissed
the City from the action with prejudice. 3 Niese appeals the
judgment of the trial court.
II. Analysis
On appeal, Niese asserts that the City is not protected by
sovereign immunity for the intentional torts committed by
Harsley while he was “functioning in a government capacity.”
Niese further argues that the City’s negligent retention of
Harsley, after receiving notice of his misconduct, is not
protected by sovereign immunity. Finally, Niese maintains that
the reporting requirement of Code § 63.1-55.3 is a ministerial
act; accordingly, the City is not immune from liability for its
employees’ negligence in failing to report the sexual assaults.
The City argues that it acts in a governmental capacity
when maintaining a police force. According to the City,
2
Count IV sought punitive damages for the complaints
alleged in Counts I through III.
9
[w]hen a municipal corporation acts in its
governmental capacity, it is considered to be
an agency of the state and, therefore, it is
not liable for damages to an individual who was
injured by the wrongful act of an employee
while the employee is engaged in the
performance of the governmental function.
Therefore, the City maintains that it is not liable for the
intentional torts of its employee committed while the employee
was carrying out the governmental function. The City further
argues that decisions regarding the hiring and employing of an
individual police officer are an “integral part” of the
governmental function of providing a police force; accordingly,
the City is protected by sovereign immunity for these acts.
Finally, the City maintains that because the provision of mental
health counseling is a governmental function, the City’s
immunity is not abrogated by its employees’ failure to perform a
ministerial task “as part of [his or] her employment with the
City.”
“[T]he doctrine of sovereign immunity is ‘alive and well’
in Virginia.” Messina v. Burden, 228 Va. 301, 307, 321 S.E.2d
657, 660 (1984). It is well established that the doctrine of
sovereign immunity protects municipalities from tort liability
arising from the exercise of governmental functions. Hoggard v.
3
On July 25, 2001, the trial court entered an order to stay
the proceedings against Harsley, pending a decision by this
Court in this appeal.
10
City of Richmond, 172 Va. 145, 147-48, 200 S.E. 610, 611 (1939).
As we explained in Hoggard:
[A] municipality is clothed with two-fold
functions; one governmental, and the other
private or proprietary. In the performance of
a governmental function, the municipality acts
as an agency of the state to enable it to
better govern that portion of its people
residing within its corporate limits. To this
end there is delegated to, or imposed upon, a
municipality, by the charter of its creation,
powers and duties to be performed exclusively
for the public. In the exercise of these
governmental powers a municipal corporation is
held to be exempt from liability for its
failure to exercise them, and for the exercise
of them in a negligent or improper manner.
This immunity is based on the theory that the
sovereign can not [sic] be sued without its
consent, and that a designated agency of the
sovereign is likewise immune.
There are granted to a municipal
corporation, in its corporate and proprietary
character, privileges and powers to be
exercised for its private advantage. . . . For
an injury resulting from negligence in their
exercise or performance, the municipality is
liable in a civil action for damages in the
same manner as an individual or private
corporation.
Id.
In general, a municipality is immune from liability for
negligence associated with the performance of “governmental”
functions, but can be held liable for negligence associated with
the performance of “proprietary” functions. Id., see also
Burson v. City of Bristol, 176 Va. 53, 63, 10 S.E.2d 541, 545
(1940). A function is governmental if it is “directly tied to
11
the health, safety, and welfare of the citizens.” Edwards v.
City of Portsmouth, 237 Va. 167, 171, 375 S.E.2d 747, 750
(1989). Stated another way, a governmental function involves
“the exercise of an entity’s political, discretionary, or
legislative authority.” Carter v. Chesterfield County Health
Comm’n, 259 Va. 588, 591, 527 S.E.2d 783, 785 (2000) (citing
First Va. Bank-Colonial v. Baker, 225 Va. 72, 301 S.E.2d 8
(1983)).
“[A] municipal corporation acts in its governmental
capacity in . . . maintaining a police force.” Hoggard, 172 Va.
at 148, 200 S.E. at 611. Accordingly, a municipality is immune
from liability for a police officer’s negligence in the
performance of his duties as a police officer.
Although this Court has not addressed the issue of a
municipality’s liability for an intentional tort committed by an
employee in the performance of a governmental function, other
courts have addressed the issue. For example, in Carter v.
Morris, 164 F.3d 215 (4th Cir. 1999), Carter sued the City of
Danville and others, asserting both federal claims under 42
U.S.C. § 1983 and state law tort claims arising out of her
treatment by officers of the City of Danville Police Department.
Id. at 217. The United States District Court for the Western
District of Virginia granted summary judgment to the City on all
of Carter’s claims. Id. With respect to Carter’s state law
12
tort claims against the City, the United States Court of Appeals
for the Fourth Circuit affirmed and held that a City is immune
from liability for the intentional torts of its employees. Id.
at 221. The court explained that it could “find no authority
that this immunity has been waived.” Id. Furthermore, the
court noted that the Virginia Tort Claims Act, which waives the
state’s immunity for certain claims, unequivocally states that
the Act cannot be so construed as “to remove or in any way
diminish the sovereign immunity of any county, city or town in
the Commonwealth.” Id.; see Code § 8.01-195.3.
We agree with the reasoning of the Fourth Circuit and hold
that a municipality is immune from liability for intentional
torts committed by an employee during the performance of a
governmental function. In the present case, Harsley committed
the alleged intentional torts against Niese during the ongoing
investigation of her complaint concerning her son. The
investigation of a citizen’s complaint is certainly part of the
governmental function of providing a police force. Accordingly,
the City cannot be held liable for the alleged intentional torts
committed by Harsley.
Niese next asserts that the City’s retention of Harsley as
a police officer, after receiving notice of his alleged
misconduct, is negligence which is not protected by sovereign
immunity. Niese correctly notes that the independent tort of
13
negligent retention is recognized in Virginia. Southeast
Apartments Mgmt., Inc. v. Jackman, 257 Va. 256, 260, 513 S.E.2d
395, 397 (1999). However, the doctrine of sovereign immunity
protects municipalities from liability for negligence in the
performance of governmental functions. As stated previously,
the maintenance of a police force is a governmental function.
Hoggard, 172 Va. at 148, 200 S.E. at 611. The decision to
retain an individual police officer is an integral part of the
governmental function of maintaining a police force.
Accordingly, we hold that the City is immune from liability for
any negligence associated with its decision to retain a specific
police officer.
Niese urges this Court to adopt an exception to the rule of
sovereign immunity for the tort of negligent retention, as we
did with respect to the doctrine of charitable immunity for the
tort of negligent hiring. See J. . . v. Victory Tabernacle
Baptist Church, 236 Va. 206, 210, 372 S.E.2d 391, 394 (1988)
(holding that the independent tort of negligent hiring “operates
as an exception to the charitable immunity of religious
institutions”). In Messina, 228 Va. at 307-08, 321 S.E.2d at
660, we explained the purpose behind sovereign immunity as
follows:
One of the most often repeated
explanations for the rule of state immunity
from suits in tort is the necessity to protect
14
the public purse. However, protection of the
public purse is but one of several purposes for
the rule. . . . [S]overeign immunity is a
privilege of sovereignty and . . . without the
doctrine there would exist inconvenience and
danger to the public in the form of officials
being fearful and unwilling to carry out their
public duties. . . . [I]f the sovereign could
be sued at the instance of every citizen the
State could be ‘controlled in the use and
disposition of the means required for the
proper administration of the government.’
(Internal citations omitted). The same purposes do not underlie
the doctrine of charitable immunity and we decline to create an
exception to the protection afforded by sovereign immunity for
the independent tort of negligent retention.
Finally, Niese maintains that the reporting requirement in
Code § 63.1-55.3 is “ministerial,” and the City is not protected
by sovereign immunity. 4 The 1998 version of Code § 63.1-55.3(A)
requires social workers, mental health professionals, and others
“who [have] reason to suspect that an adult is an abused,
neglected or exploited adult” to “immediately” report the
suspected abuse to the local department of the city or county
where the abuse was believed to have occurred. Similarly, Code
§ 63.1-55.3(C) states that any person required to make a report
in Code § 63.1-55.3(A) who has “reason to suspect” that an adult
4
The question whether provision of mental health services
by the City is a governmental function is not addressed in an
assignment of error.
15
has been sexually abused “shall immediately report” the sexual
abuse to the local law enforcement agency.
We have addressed the liability of cities and towns on
numerous occasions and have never retreated from the rule
articulated in Burson v. City of Bristol, 176 Va. 53, 63, 10
S.E.2d 541, 545 (1940), wherein we held:
In this State, we have long determined the
liability or non-liability of a city for acts
committed by it according to whether the act
was done in its governmental or proprietary
character. If the act be done in carrying out
a governmental function, the city is not
liable; if it be done in the exercise of some
power of a private, proprietary or ministerial
nature, the city is liable.
Niese’s characterization of the reporting requirement as
“ministerial” is incorrect. The words, “who has reason to
suspect that an adult is an abused, neglected or exploited
adult,” in Code § 63.1-55.3(A), require the exercise of judgment
and discretion in concluding that a report must be made. While
individual cases may present patently obvious circumstances
where reporting must take place, other cases may be subtle and
more questionable. We must focus upon the statute and not the
circumstances in this case to determine whether the statutory
duty is ministerial. We hold that the provisions of Code
§ 63.1-55.3 applicable to this case impose a discretionary duty
and not a ministerial duty upon those individuals with reporting
requirements.
16
Accordingly, we will affirm the judgment of the trial court
sustaining the City’s plea of sovereign immunity.
Affirmed.
17