No Sovereign Immunity for Virginia City or Truck Driver In-Between Garbage Pick-Ups

The Virginia Court of Appeals has ruled that a trial court erred in finding that a garbage truck driver and the city of Chesapeake were shielded by sovereign immunity for their role in an accident caused by the truck driver running a stop sign and colliding with a car.

The lower court had reasoned that sovereign immunity was appropriate because the entire process of driving a garbage truck involves ongoing discretion that does not begin and end each time the driver stops to collect garbage along the route.

But the appeals court ruled differently and remanded the case for further proceedings, concluding that when the accident happened this city garbage truck driver was not doing anything other than driving to the place where he would then perform his garbage collection function.

“Many decisions in the Commonwealth have addressed the question of when a government employee driving a vehicle is immune from suit. When the operation of a vehicle involves ordinary driving, the employee’s actions are ministerial, not discretionary, and ministerial acts are not cloaked in immunity,” the Court of Appeals concluded.

Although sometimes a garbage truck driver does engage in activities involving discretion and judgment between scheduled stops, that was not the case here, the appeals court continued. The garbage truck driver admitted he was driving normally at the time of the accident. The caselaw requires a court to “focus not on the job description as a whole, but on the employee’s actions at the time of the accident,” the court wrote in reversing.

Ran Stop Sign

According to court testimony, when he was about 10% of the way into his assigned trash collection route for the day, the truck driver approached an intersection with a two-way stop sign. Rather than come to a complete stop, he intentionally “rolled through the stop sign.” As he rolled into the intersection, Taylor Jolley’s car, coming from the right and without a stop sign, collided with the truck and flipped on its side. Jolley sustained serious injuries.

Following the accident, the truck driver was charged and convicted for failing to obey the stop sign. Jolley sued the driver and the city of Chesapeake in the Circuit Court of Chesapeake, alleging simple negligence. The driver and the city responded with a special plea of sovereign immunity.

During the circuit court proceeding when asked if “between cans, are you doing anything different than if you were just normally driving down the street in your own car,” the truck driver said, “no.” Instead, what he does between stops is “look for his surroundings and make sure all is clear,” so he can “get the can, dump it, and go to the next one.” The truck driver has about 800 houses on his route, and said that every time he dumps a trash can, a counter counts the number of cans.

The circuit court ruled the city and the driver were immune from suit, finding that “during this period en route going from can to can, having been 10% in his route, counting every single bin that is dumped into his can,” there were “special risks” for this unique process and that “the exercise of judgment and discretion were required throughout this route.” The court determined that the entire act of garbage collection required ongoing discretion and judgment, notwithstanding the ordinary driving between individual stops along the route. As a result, the lower court granted the city and the ruck driver immunity from suit.

Jolley appealed.

The Court of Appeals noted there is a four-factor test to evaluate if a government worker is entitled to immunity but only one factor is disputed in this case: whether the truck driver used judgment and discretion at the time of the collision. Ministerial acts, which do not involve the exercise of judgment and discretion, are not entitled to immunity. According to the court, the reasoning is that virtually every act performed by a person involves the exercise of some discretion, and the mere presence of any “discretion is not always determinative.”

Drawing the line between discretionary and ministerial acts is particularly difficult when a government employee is involved in an accident while driving a government vehicle. In such accident cases, the court said it looks to “whether the means of effectuating the applicable government function involves ‘ordinary driving in routine traffic’ versus driving that requires a ‘degree of judgment and discretion beyond ordinary driving situations in routine traffic.'”

One way to distinguish 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. Sovereign immunity tends to protect drivers who in addition to operating the vehicle must exercise discretion and judgment to carry out the governmental purpose. In contrast, merely driving a vehicle to the place where a governmental function is to be performed is analogous to an “ordinary driving situation” that does not involve special risks or a high degree of discretion.

School Bus Driver

According to the appeals court, common sense distinguishes a driver of a school bus with children aboard from one driving an empty bus to the school where she would embark on the governmental duty of transporting children. Likewise, the state’s Supreme Court has found that operating a government combination “snowplow/salt truck” to spread salt during a snowstorm requires additional judgment and discretion beyond that involved in ordinary driving

When first responders respond to emergencies, the government vehicle is being used for the governmental function itself. The job of carrying out an emergency response requires the driver to engage in special risks that a driver in routine traffic does not. For this reason, immunity is appropriate when a police officer is engaged in a vehicular pursuit.

Turning to this case, the parties agree that the truck driver was performing the government function of garbage collection on the day of the accident. But they disagree about whether he was using judgment and discretion inherent to the task of garbage collection when he ignored a stop sign. The employee argues that the act of garbage collection should be viewed as a whole and that the entire process of collecting garbage requires judgment and discretion beyond that of ordinary driving.

The trial court adopted that position, finding that the evidence shows that he had to make decisions along the route, such as determining how to pick up and empty each individual can and when to empty the truck before continuing.

The appeals court found that the law requires a different outcome. The trial court did not conclude that, at the moment of running the stop sign, the truck driver was actually exercising discretion and judgment about what to do with this load. The employee’s own testimony is that between cans he was not doing anything differently than if he was “just normally driving down the street.” There is also no evidence that he was calculating when or how to pick up the next can, or the total weight of his truck, while ignoring the stop sign.

‘Normally Driving’

The appeals court also found it relevant that, at the time of the accident, the truck driver was simply operating the garbage truck as a means of transport. Unlike a first responder driving in an emergency, he was not engaged in “split-second decisions balancing grave personal risks, public safety concerns, and the need to achieve the governmental objective.” He was not actively collecting the trash the way the snowplow driver was using his vehicle to salt a street.

In sum, the appeals court found that the evidence shows the truck driver was driving normally to reach his next stop when the accident occurred. His driving between trash cans, during which he ran the stop sign and collided with Jolley’s car, was a ministerial act. For this reason, the city and truck driver are not entitled to the protection of sovereign immunity.

The appeals court added that this opinion does not mean that sovereign immunity starts and stops with every house along a garbage route—in this case, about 800 stops a day. Indeed, the evidence shows that the function of garbage collection is more than just picking up an individual can. But the evidence is equally clear that at the time of the crash, this driver was not doing anything other than driving to the place where he would next perform his garbage collection function.