On sovereign immunity and the Virginia Tech victims

The Washington Post ran this article about how some law firm has been retained by some of the families of victims from the shootings at Virginia Tech.

Part of the discussion is whether the Commonwealth could rely on sovereign immunity, and the caps contained in the Virginia Tort Claims Act.

In "Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit," 43 A.L.R.4th 19 (1986 & Supp.), the authors wrote:

"To balance the public's right of action pursuant to such waiver of immunity with the government's need to protect public coffers from potentially devastating claims, several jurisdictions have adopted statutes and ordinances, often incorporated in waiver legislation, limiting the amounts or kinds of damages recoverable against government tortfeasors.[FN3] Courts have almost uniformly recognized that legislative bodies have the power to prescribe such limits, and that the limits prescribed are constitutionally valid (§§ 3-7, infra). Though they may abridge the remedies of victims of government, as opposed to private torts, damage limitation statutes or ordinances are almost unanimously viewed as having a rational basis in the government's need to provide for effective risk management (§ 3[a], infra), although one court has applied the strict scrutiny test in concluding that a statute limiting recovery to "economic losses" unconstitutionally deprived a government tort victim of a fundamental right.[FN4] In addition to repelling equal protection attacks on damage limitation laws, the courts have also consistently rejected arguments that such enactments violate due process (§ 4, infra), or that they abridge state constitutional guaranties of access to courts for redress of grievances (§ 5, infra), or impair vested rights (§ 6, infra). With respect to the latter arguments, the courts have reasoned that damage limitation statutes involve no denial of redress or impairment of rights where there was no right of action at all prior to waiver of governmental immunity, that a right to redress does not include a right to full compensation, and that the restriction of damages recoverable by victims of proprietary conduct is not objectionable where waiver legislation, by effectively abolishing proprietary-governmental analysis, broadens the class of persons entitled to relief."

The issue suggested by the discussion in the article is not the validity but the scope of the liability cap under the Virginia Tort Claims Act:

"Grenier argues that the state's immunity is not ironclad. He cites a provision of the state code that says a claimant can recover up to $100,000 "or the maximum limits of any liability policy maintained to insure against such negligence or other force if such policy is in force at the time of the act."

Virginal Tech does not have its own insurance. It is covered by the state Treasury Department's Division of Risk Management.

Virginia Solicitor General William E. Thro said he is confident that the courts would uphold the $100,000 cap. "Any ambiguities are construed in favor of the commonwealth," Thro said.

Grenier counters that he has not "found any case law that backs up the commonwealth's argument."

In fact, Grenier settled a wrongful death case with Virginia for $1.2 million in 2001 that involved a juvenile at a youth detention center.

In 2000, the state paid $750,000 to settle a suit brought by the daughter of a woman who was killed in 1997 when a balcony collapsed during the University of Virginia commencement ceremony. Several other relatives split separate settlements that totaled $790,000. Kilgore, who settled the University of Virginia case, said the state will have to quickly determine how broad its immunity is and then consider its options.

"Once the judge rules or is about to rule what your liability cap is or isn't . . . you have to quickly make strategic decisions about how to proceed," Kilgore said."

This BLT post says the lawyers are also working on a federal civil rights action. The state law of sovereign immunity has no application to a federal civil rights action; the state and its agencies cannot be sued in federal court because of the Eleventh Amendment, but state actors can be and are sued individually under 42 U.S.C. 1983 - but not for negligence, and in their individual capacities they have the defense of qualified immunity.