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Colby v. Boyden

January 11, 1991

PATRICIA E. COLBY
v.
WILLIAM H. BOYDEN



From the Circuit Court of the City of Virginia Beach, Philip L. Russo, Judge.

Present: All the Justices.

Lacy

JUSTICE LACY delivered the opinion of the Court.

In this case we determine the degree of negligence required to impose civil liability for injuries resulting from the actions of a police officer who violates traffic laws while pursuing a fleeing lawbreaker.

On January 6, 1987, Patricia E. Colby was driving her vehicle east on Pembroke Avenue in the City of Virginia Beach. As she approached the intersection of Independence Boulevard, the light controlling her lane turned green. She slowed, looked to the left and right, and, seeing or hearing nothing, proceeded into the intersection. In the middle of the intersection, her car was struck on the left side by a Virginia Beach Police Department vehicle operated by Officer William H. Boyden. As a result of the collision, Colby received serious and permanent injuries.

Shortly before the accident, Officer Boyden had observed a vehicle traveling south on Independence Boulevard run a red light at the intersection of Independence and Witchduck Road. He began to pursue the offender and activated his emergency blue lights. He saw the vehicle move from lane to lane at a high rate of speed and subsequently run the red light at the intersection of Independence and Pembroke. Continuing his pursuit, Officer Boyden activated his siren for a short burst as he neared the intersection of Pembroke and Independence. Although the traffic light was red, he proceeded to cross the intersection. As he entered the intersection he observed Colby's car also entering the intersection. Officer Boyden applied his brakes and swerved in an unsuccessful attempt to avoid the collision.

Colby filed a motion for judgment against Boyden and the City of Virginia Beach seeking damages for the injuries sustained in the accident. After non-suiting the City, Colby, in an amended motion, alleged one count of negligence and one count of gross negligence against Boyden. Boyden filed a special plea asserting the defense of sovereign immunity to the simple negligence count. Upon stipulated facts, the trial court sustained Boyden's plea and granted his motion for summary judgment, holding that, as a matter of law, Colby had failed to make out a prima facie case of gross negligence.

On appeal Colby raises three issues: (1) whether Officer Boyden was entitled to assert the defense of sovereign immunity; (2) whether Colby was required to prove gross negligence in order to recover; and (3) whether, as a matter of law, Colby failed to establish a prima facie case of gross negligence. We will consider the issues in order.

Sovereign Immunity

Colby asserts that Boyden's actions involved in the pursuit of a speeding automobile were not entitled to the protection of sovereign immunity because they were ministerial acts and not acts which involved judgment and discretion. In support of this position Colby relies primarily on Biscoe v. Arlington County, 738 F.2d 1352 (D.C. Cir. 1984), cert. denied, 469 U.S. 1159 (1985), where the actions of an Arlington County police officer pursuing a fleeing suspect at high rates of speed into the District of Columbia were held to constitute ministerial acts.

The court in that case, however, was applying and construing the law of the District of Columbia, not the law of Virginia. The District's law, as explained by that court, provides complete immunity to agents of the government for tortious acts occurring in the performance of discretionary functions, but, if the act is one involving the "'execution of policy as distinct from its formulation,'" it is ministerial, and the defense of immunity is unavailable. Id. at 1362 (citation omitted). Describing the officers' actions as the execution of the decision to pursue the fleeing automobile, the court concluded that the officers' actions were ministerial and, therefore, not entitled to sovereign immunity. Id. at 1363.

The court's holding in Biscoe is not persuasive when considering the doctrine of sovereign immunity as applied in Virginia. The doctrine's availability and the protection it affords individuals to whom it applies differs substantially in the two jurisdictions. In Virginia, a government agent entitled to the protection of sovereign immunity is not immunized from suit. Rather, the degree of negligence which must be shown to impose liability is elevated from simple to gross negligence. See James v. Jane, 221 Va. 43, 53, 267 S.E.2d 108, 113 (1980); Sayers v. Bullar, 180 Va. 222, 229, 22 S.E.2d 9, 12 (1942).

In Virginia, as in the District, the question of whether a particular act is entitled to the protection of sovereign immunity

depends upon whether the act under consideration is classified as discretionary or ministerial in nature. Our resolution of that question, however, goes beyond determining whether the act ...


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