Virginia Basics: Claims against the Commonwealth, Counties, Cities, and Towns
Can you sue if you or your property are damaged due to negligence by the state of Virginia, a transportation district, or a local government? An attorney’s classic response: “It depends.”
Sovereign immunity is a legal principle originating from English law, where the monarchy was immune from civil suits or criminal prosecution. Virginia inherited this doctrine through its adoption of English common law. While the concept of absolute immunity has largely been rejected today, in Virginia, it still applies mainly to tort claims like motor vehicle accidents. The key idea is that the state cannot be sued without its consent. Sovereign immunity protects the state, its local governments, agencies, and employees, and has been extended through both case law and state statutes, though it has also been modified by legislation and court rulings over time.
The Virginia tort claims act waives sovereign immunity of the Commonwealth for tort claims up to $100,000.00. However, prior to filing any claim against the Commonwealth, proper notice of the claim must be given. Every claim against the Commonwealth is barred unless a claimant or his agent or attorney files a notice of claim within one year after the cause of action occurred. The notice of claim must include a written statement of the claim. A written statement of the claim includes the time and place where the injury is alleged to have occurred, and the agency or agencies alleged to be liable. There is a limited exception wherein a claim would not be barred against certain parties such as the Commonwealth, the Attorney General or the transportation district, so long as they have actual knowledge of the claim. This means that they must have knowledge of the nature of the claim along with the time and place where the injury occurred, within one year of the date of the incident.
So, you know what to send to provide notice, but to whom do you send the notice to? When the claim is solely against the Commonwealth, notice shall be filed with the Director of the Division of Risk Management or the Attorney General. When your claim is solely against the transportation district, notice shall be filed with the chairman of the commission of the transportation district. If, however, you have a claim against the Commonwealth and the agency you allege liable is the Department of Transportation, the notice shall be filed with the Commissioner of Highways.
Virginia counties are absolutely immune from tort liability. No contract or equitable action may be maintained against a Virginia county on any claim or demand until the claim is presented to the governing body for allowance. If the governing body disallows the claim, the claimant may appeal to the circuit court by: (1) filing a notice of appeal with the clerk of the county within 30 days after notice of disallowance; and (2) by filing a complaint in the circuit court within 6 months after the claim was disallowed.
When acting within its public or governmental capacity, a city or town enjoys sovereign immunity for claims arising from the acts or omissions of employees and agents. A city or town does not have sovereign immunity for proprietary actions. Proprietary actions promote the comfort, safety and happiness of residents, such as operation of waterworks. Governmental acts involve political, discretionary, or legislative authority. If a particular function has both governmental and proprietary aspects, the governmental aspect prevails, and they will be immune from negligence liability. However, an independent contractor performing a specific task cannot claim sovereign immunity even if the employing entity is immune.
A negligence claim against a county, city, or town is barred unless the claimant follows the notice requirements. However, the notice requirements for a county, city, and town differ slightly from the notice requirements that must be given to the Commonwealth.
A claimant must give notice to either the county, city, or town attorney or the mayor or chief executive of the locality. In addition, notice must be given within 6 months after the cause of action arises, unless the claimant is prevented by injury. The notice must describe the nature of the claim and the date, time, and place where the injury occurred. This notice procedure, however, is not required for tax refund claims, suits for non-monetary relief, or mandamus petitions.
If the Commonwealth, transportation district, or local government contests receiving notice from a claimant, the claimant bears the burden to show timely delivery of the notice. As such, it is best practice to send any notice via traceable means such as certified mail. If it becomes necessary to prove delivery of the notice, any United States mail return receipt showing the delivery date or any signed and dated acknowledgment of delivery from authorized personnel where the statement is filed is considered to be prima facie evidence of filing the notice.
Claimants must adhere to strict notice requirements to preserve their right to sue, with different procedures depending on whether the claim is against the Commonwealth, a transportation district, or a local government entity. Failure to follow these notice rules can bar a claim, emphasizing the importance of timely and accurate notification. As sovereign immunity continues to evolve through statutes and court decisions, understanding these notice procedures is critical for anyone seeking to pursue a claim against the state or its subdivisions.
References:
Code of Virginia – § 8.01-195.6. Notice of claim.
https://law.lis.virginia.gov/vacode/title8.01/chapter3/section8.01-195.6/
Code of Virginia – § 15.2-209. Notice to be given to counties, cities, and towns of tort claims for damages.
https://law.lis.virginia.gov/vacode/title15.2/chapter2/section15.2-209/
