The Court of Appeals Releases an Opinion Discussing the Nuances of the Ministerial vs. the Discretionary Act of Driving for Purposes of Applying Sovereign Immunity
Jolley v. Ellis, Record No. 0870-23-1 (Va. Ct. App. Oct. 1, 2024)
Facts. Jason Ellis, an equipment operator for the City of Chesapeake, was driving a garbage truck between stops when he ran a stop sign and hit Taylor Jolley’s car. Jolley sued Ellis and the City for simple negligence, and Ellis and the City filed a special plea of sovereign immunity.
At an ore tenus hearing, Ellis testified that it was up to him how to collect trash from a can when he approached it. He could “get out and move it or…grab the can with the claw and dump it into the truck.” He is required to count each can he empties, and it is up to him to decide when to leave his route to empty the truck before resuming. He testified that between stops, he drives normally.
The trial court sustained the plea, finding Ellis and the City immune from suit, reasoning that there were “special risks” involved in trash collection that required ongoing discretion, even when driving between stops. Jolley appealed.
Issue. Whether Ellis was performing a discretionary function while driving between stops.
Holding. No. Ellis was driving normally to reach his next stop when the crash occurred.
Notes. A four-factor test is used to determine whether a government employee is entitled to sovereign immunity, and in this case only the last factor was in dispute: whether the act complained of involved the use of judgment and discretion. Ministerial acts, which do not involve the use of judgment or discretion are not entitled to immunity. To determine whether a government employee is performing a ministerial or discretionary act while driving, courts look to whether the employee was involved in “ordinary driving in routine traffic” or driving that required a “degree of judgment and discretion beyond the ordinary driving situations in routine traffic” and involved “special risks” to perform the assigned duty.
The Court of Appeals found that one way to distinguish between ministerial or discretionary acts of driving is to “assess whether a vehicle is serving as a means of transportation to get to the place where the governmental function is to be performed, or whether driving the vehicle is the means of carrying out the government function.” For example, a school bus driver operating an empty bus to start her route is engaged in a ministerial act of driving. On the other hand, transporting children on the bus requires the driver to exercise a higher degree of discretion, such as monitoring the children. Similarly, a snowplow driver traveling to the location where he is to plow is engaged in routine driving, whereas the act of plowing requires more judgment.
What matters is not the judgment required of the job “as a whole,” but the discretion required “at the moment” of the incident. Here, although Ellis was required to use discretion and judgment while collecting trash, at the time of the crash, he was only driving his truck as a means of transport. He was therefore not entitled to sovereign immunity.