The doctrine of sovereign immunity is alive and well in Virginia. As a general rule, the Commonwealth is immune both from actions at law for damages and from suits in equity to restrain governmental action or to compel such action. Only the legislature acting in its policy-making capacity can abrogate the Commonwealth's immunity. A waiver of sovereign immunity will not be implied from general statutory language but must be explicitly and expressly stated in the statute. The Virginia Tort Claims Act, Va. Code Ann. § 8.01-195.1 et seq., does provide a limited waiver of the State's immunity from tort claims but it does not waive sovereign immunity as to the Commonwealth's employees.
In consolidated cases, plaintiffs, parents and estate administrators of students killed in a mass shooting at Virginia Polytechnic Institute and State University (Virginia Tech), brought an action for damages against defendants, the Commonwealth, various university officials, the shooter's counselors, and a community services board and its employees. Various defendants filed demurrers and special pleas of sovereign immunity.
Is Virginia Polytechnic Institute and State University liable for failing to warn and protect its students?
While the university president and vice president were entitled to qualified sovereign immunity as to the simple negligence claims, they had a statutory duty to provide a reasonably safe campus and the students were owed, at minimum, the common law duties owed a business invitee. The complaints alleged facts sufficient to establish a duty to warn or protect the students. The complaints did not state a cause of action against emergency policy group members, however. Next, the shooter's counselors were not entitled to sovereign immunity because the counseling center did not provide services to the public, but to students who paid for the services. Whether they were entitled to statutory immunity pursuant to Va. Code Ann. § 54.1-2400.1 could not be determined because evidence had to be taken to establish whether the shooter was a "client" as defined under § 54.1-2400.1(A). Finally, the community services board and its employees were entitled to qualified sovereign immunity from simple negligence, and while the allegations of the complaint were sufficient to establish simple negligence, they were insufficient to rise to the level of gross negligence or intentional conduct.