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Violet Seabolt filed a complaint against Albermarle County alleging that she was injured as a result of the County's gross negligence in maintaining a public park. The County filed a demurrer to gross negligence and a special plea of sovereign immunity. The circuit court sustained the demurrer as to gross negligence but declined to rule on the County's special plea of sovereign immunity. The Supreme Court affirmed the dismissal of Seabolt's complaint but on different grounds, holding that the circuit court erred by not granting the County's special plea of sovereign immunity because, in the absence of a legislative waiver of immunity, the circuit court was without jurisdiction to adjudicate Seabolt's tort claim against the County, and therefore, the court had no jurisdiction to decide the case on any other basis.Receive FREE Daily Opinion Summaries by Email
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Record No. 110733
JUSTICE WILLIAM C. MIMS
April 20, 2012
COUNTY OF ALBEMARLE
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Cheryl V. Higgins, Judge
In this appeal, we consider whether the circuit court had
subject matter jurisdiction to adjudicate a tort claim against
Violet Seabolt filed a complaint against Albemarle County
alleging that she was injured as a result of the county’s gross
negligence in maintaining a public park.
The county filed
defensive pleadings, including a demurrer to gross negligence
and a special plea of sovereign immunity.
The circuit court
heard argument on the county’s pleadings and sustained the
demurrer as to gross negligence.
The circuit court declined to
rule on the county’s special plea of sovereign immunity.
On appeal, Seabolt argues that the circuit court erred in
sustaining the county’s demurrer as to gross negligence.
county did not assign cross-error to the circuit court’s
decision not to rule on the issue of sovereign immunity.
Nonetheless, the county argues, inter alia, that the circuit
court lacked jurisdiction to hear the suit because the county is
immune in tort.
We will first consider the county’s claim of sovereign
immunity because it is jurisdictional.
Afzall v. Commonwealth,
273 Va. 226, 230, 639 S.E.2d 279, 281 (2007).
In Afzall, we
considered the Commonwealth’s argument of sovereign immunity,
made for the first time on appeal, because “if sovereign
immunity applies, the court is without subject matter
jurisdiction to adjudicate the claim.”
“At common law, the Commonwealth was immune from liability
for torts committed by its officers, employees and agents. . . .
[T]hat immunity continues to apply in the absence of a
legislative waiver by which the Commonwealth consents to be sued
in its own courts.”
Doud v. Commonwealth, 282 Va. 317, 320, 717
S.E.2d 124, 125 (2011) (citations omitted).
political subdivisions of the Commonwealth, enjoy the same tort
immunity as does the sovereign.
Mann v. County Bd. of Arlington
County, 199 Va. 169, 175, 98 S.E.2d 515, 519 (1957); Fry v.
County of Albemarle, 86 Va. 195, 197-99, 9 S.E. 1004, 1005-06
Consequently, “a county cannot be sued unless and until
that right and liability be conferred by law.”
Mann, 199 Va. at
174, 98 S.E.2d at 518-19.
In Doud, we recognized that with the enactment of the
Virginia Tort Claims Act (“VTCA”), “the Commonwealth has waived
its sovereign immunity for tort claims in the circumstances to
which the statute applies, but the waiver is a limited one.”
282 Va. at 320, 717 S.E.2d at 125.
However, the Virginia Tort
Claims Act, by its express terms, excludes counties from its
limited abrogation of immunity.
Code § 8.01-195.3 (“nor shall
any provision of this article be applicable to any county, city
or town in the Commonwealth or be so construed as to remove or
in any way diminish the sovereign immunity of any county, city
or town in the Commonwealth”).
Seabolt thus relies on a different statute as the basis for
asserting a legislative waiver of the county’s sovereign
She argues that pursuant to Code § 15.2-1809, a
county operating a park, recreational facility, or playground is
“liable in damages for the gross negligence of any of its
officers or agents in the maintenance or operation of any such
park, recreational facility or playground.” 1
Code § 15.2-1809.
The county responds that this statute does not waive the
sovereign immunity of counties, but only of cities and towns.
We agree with the county.
Code § 15.2-1809 states:
No city or town which operates any park,
recreational facility or playground shall be
liable in any civil action or proceeding for
damages resulting from any injury to the person
or from a loss of or damage to the property of
any person caused by any act or omission
constituting ordinary negligence on the part of
any officer or agent of such city or town in the
We note that Seabolt has named only Albemarle County and
not one or more of its officers or agents in this action.
maintenance or operation of any such park,
recreational facility or playground. Every such
city or town shall, however, be liable in damages
for the gross negligence of any of its officers
or agents in the maintenance or operation of any
such park, recreational facility or playground.
The immunity created by this section is
hereby conferred upon counties in addition to,
and not limiting on, other immunity existing at
common law or by statute.
In determining whether Code § 15.2-1809
allows counties to be sued for the alleged gross negligence of
unnamed officers or agents,
“[w]e look to the plain meaning of
the statutory language, and presume that the legislature chose,
with care, the words it used when it enacted the relevant
Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d
402, 404 (2011) (internal citations and quotation marks
Furthermore, we recognize that “[a] waiver of
immunity cannot be implied from general statutory language but
must be explicitly and expressly announced in the statute.”
Afzall, 273 Va. at 230, 639 S.E.2d at 281 (internal quotation
The plain meaning of the statute is clear.
In a suit for
damages arising out of the operation or maintenance of a public
park, recreational facility, or playground, a city or town is
not liable for its agents’ and employees’ acts of ordinary
negligence, but is liable for gross negligence of the same
officers or agents.
The second paragraph of the statute confers
the immunity created in the first paragraph for cities and towns
onto counties “in addition to” the immunity counties already
Code § 15.2-1809 does not in any way abrogate the
sovereign immunity of counties.
This holding is consistent with
our conclusion in Frazier v. City of Norfolk, 234 Va. 388, 362
S.E.2d 688 (1987), that by enacting the statute, “the General
Assembly intended to limit the civil liability of
municipalities,” i.e. only cities and towns, “in the maintenance
and operation of any recreational facilities to cases of gross
or wanton negligence.”
Id. at 391, 362 S.E.2d at 690 (emphasis
The county next argues that the circuit court lacked
subject matter jurisdiction because Seabolt did not allege
compliance with the presentment and appeal procedures set forth
in Code §§ 15.2-1243 et seq.
According to the county, these
statutes provide the “mandatory and exclusive mode for bringing
any claim against a county in the Commonwealth.”
apparent view of the county, the claims permitted pursuant to
Code §§ 15.2-1243 et seq. include tort claims.
consistently have held that the statutes do not apply to tort
claims, we do not need to reach the procedural compliance
In both Fry and Mann, we interpreted the antecedents to the
present statutes and held that they did not abrogate the
sovereign immunity of counties in tort.
Rather, they only
allowed counties to sue and be sued in contract, subject to
certain procedural requirements.
In Fry, this Court interpreted former section 13 of chapter
45 of the Code of 1873, which read: “Counties may sue in their
own names for forfeitures, fines, or penalties given by law to
such counties, or upon contracts made with them, and may be sued
in their own names, in the circuit court of such county.”
held that “[t]he legislature has given a remedy in cases growing
out of contracts with counties, but it has given no remedy
against a county for the negligence of a public officer or
servant appointed by law.”
86 Va. at 197, 9 S.E.2d at 1005.
In Mann, we interpreted a nearly identical version of that
statute, former Code § 15-3, and held: “Virginia has enacted
legislation allowing counties to sue and be sued upon
contractual obligations (§ 15-3, Code 1950), yet we find no
legislation allowing it to be sued for tortious personal
199 Va. at 174, 98 S.E.2d at 519. 2
Today we do not
Notably, at the time of the Mann decision, the Code of
1950 included several statutes relating to claims against
counties which the Court clearly did not view as applying to
tort claims. See, e.g., former Code §§ 15-253 (“Audit and
allowance of claims against counties”); 15-256 (“Limitations on
issuance of warrants”); 15-257 (“Allowance of claims;
procedure”); 15-259 (“Appeal from disallowance of claim”); 15260 (“When disallowance of claim final; exception; when no
execution to be issued.”); 15-261 (“No action allowed against
county until, etc.”). Those statutes are the predecessors to
disturb that holding.
There is no indication that the General
Assembly, in its recodification and amendments subsequent to
Mann, intended to abrogate counties’ immunity in tort.
Afzall, 273 Va. at 230, 639 S.E.2d at 281 (waiver of immunity
cannot be implied from general statutory language but must be
explicitly and expressly announced in the statute).
We hold that the “claims” that may be recovered under Code
§§ 15.2-1243 et seq. do not include those based in tort.
absence of a legislative waiver of immunity, the circuit court
was without jurisdiction to adjudicate Seabolt’s tort claim
against the county.
See Afzall, 273 Va. at 230, 639 S.E.2d at
The circuit court should have granted the county’s special
plea of sovereign immunity.
The court had no jurisdiction to
decide the case on any other basis.
Consequently, we will
affirm the circuit court’s dismissal of Seabolt’s complaint.
the current statutory scheme set forth in Code §§ 15.2-1243 et
seq. and are substantially identical to the provisions at issue
in this case. See Code §§ 15.2-1243 (“Governing body to
receive, audit and approve claims; warrants”); 15.2-1244
(“Limitations on issuance of warrants”); 15.2-1245 (“Procedure
for allowance of claims”); 15.2-1246 (“Appeal from disallowance
of claim”); 15.2-1247 (“When disallowance of claim final;
exception; when no execution to be issued.”); 15.2-1248 (“No
action against county until claim presented to governing