Commonwealth v. Muwahhid, Record No. 0618-22-2 (Va. Ct. App. June 13, 2023)
The Court of Appeals interprets the private-person clause of the Virginia Tort Claims Act.
Facts. Hannah Muwahhid was the wife of an inmate at Sussex II State Prison. She claimed that Virginia Department of Corrections staff singled her out for unlawful treatment on multiple occasions when she came to visit her husband. VADOC officers repeatedly claimed that K-9s were alerted to her as she entered or exited the prison, leading to multiple searches, including full-body strip and cavity searches. Despite these repetitive searches, officers never recovered contraband. After complaining about her treatment, her husband was moved to another prison over three hours away. Muwahhid therefore sued the Commonwealth and multiple VADOC employees under the VTCA for acting wrongfully and breaching the duty of ordinary care that they owed to her.
The Commonwealth filed a plea of sovereign immunity. It claimed that the VTCA does not waive sovereign immunity where the conduct complained of is exclusively a governmental function. Since a private person cannot operate a prison, it reasoned, VADOC cannot not be held liable for actions related to its operation of the prison. The trial court disagreed, denying the plea, and the Commonwealth brought an interlocutory appeal.
Issue. Whether the VTCA preserves immunity for exclusively governmental functions.
Holding. No. The VTCA waives immunity for tort claims to the same extent that a private person would be liable for the same conduct under traditional tort principles regardless of whether the conduct is an exclusively governmental function.
Notes. The VTCA subjects the Commonwealth to liability for negligent or wrongful conduct “under circumstances where the Commonwealth…if a private person, would be liable to the claimant” for the same conduct. The question is not whether a private person “could” perform the action at issue, but whether they “would” be liable if they did. This point is underscored by the VTCA’s various exceptions to the VTCA’s waiver of immunity. For example, the VTCA retains immunity for claims based on actions related to the judicial functions of an agency or in connection with the assessment and collection of taxes. These exceptions describe exclusively governmental functions. Thus, if the legislature intended that the VTCA preclude liability for all exclusively governmental functions, there would have been no need to carve out these exceptions.