Banks v. Sellers

294 S.E.2d 862, 224 Va. 168, 1982 Va. LEXIS 279
CourtSupreme Court of Virginia
DecidedSeptember 9, 1982
DocketRecord 791850
StatusPublished
Cited by39 cases

This text of 294 S.E.2d 862 (Banks v. Sellers) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. Sellers, 294 S.E.2d 862, 224 Va. 168, 1982 Va. LEXIS 279 (Va. 1982).

Opinions

THOMPSON, J.,

delivered the opinion of the Court.

In this appeal the sole issue is whether a plea of sovereign immunity is available to a division superintendent of schools and a high school principal in a negligence action.1

B. Lynette Banks, a public high school student, was cut and stabbed by another student, Novita L. Goode, on school premises during school hours. Banks alleges that Joseph B. Sellers, Division Superintendent of Henrico County Public Schools, and Colin G. Steele, Principal of Henrico High School, negligently failed to provide a safe environment for her.

I. Present State of the Law.

In recent years, we have considered several cases involving sovereign immunity pleas, and we think it appropriate to review briefly our holdings in each.

In Kellam v. School Board, 202 Va. 252, 117 S.E.2d 96 (1960), the plaintiff sustained personal injuries at a concert at a junior high school which the School Board had leased to a private operator to whom plaintiff had paid an admission charge. The plaintiff charged that the School Board was negligent in failing to maintain common passageways in a reasonably safe condition. We held that the School Board was immune from liability for tortious injury since it was a governmental agency or arm of the state and [170]*170acted in a governmental capacity in the peformance of its duties imposed by law.

In Crabbe v. School Board and Albrite, 209 Va. 356, 164 S.E.2d 639 (1968), a student sustained a hand injury while being instructed by his teacher on the use of a power tool. The student claimed that the School Board was negligent because the power tool was defective and improperly equipped, and that the teacher was negligent in permitting use of the defective tool and improperly instructing the student in its use. Consistent with the holding in Kellam, we held that the School Board was performing a governmental function and, therefore, was immune and not liable for personal injuries sustained by a pupil as a result of the negligence of the teacher. However, we held that, despite the immunity of the School Board, the teacher, in his individual capacity, was not immune as an employee of the governmental unit and thus was liable for his own negligence.

In Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569 (1973), Lawhorne died 16 days after receiving a severe blow on his head. In a negligence action against the Chief Administrator, the Assistant Administrator, and a surgical intern of the University of Virginia Hospital, Lawhorne’s widow alleged that the intern had misdiagnosed Lawhorne’s injury and that the procedures employed by the Hospital were inadequate and improper. We held that, under the doctrine of sovereign immunity, a hospital which is an organ of the state is immune from actions in tort, and that an administrator who performs supervisory functions or exercises discretionary judgment within the scope of his employment is also immune. This immunity was extended to the intern since he exercised discretion and judgment as to persons who presented themselves in the emergency room of the hospital. “In performing these duties he was required, in the exercise of his best judgment, either to treat and release the patients or to treat and admit them to the hospital.” 214 Va. at 408, 200 S.E.2d at 572.

In Short v. Griffitts, 220 Va. 53, 255 S.E.2d 479 (1979), we reversed a lower court decision which granted sovereign immunity to a high school’s athletic director, baseball coach, and building and grounds supervisor when a student fell on broken glass while running on the school’s outdoor track. We relied on Crabbe and held that, since the individual defendants, as employees, did not enjoy the governmental immunity afforded to the School Board, [171]*171they were responsible for their acts of simple or ordinary negligence.

More recently, in James v. Jane, 221 Va. 43, 267 S.E.2d 108 (1980), we were faced with the issue whether a physician, employed by a state agency and practicing in a hospital operated by such an agency, should be immune from an action for his negligence, i.e., for his failure to exercise reasonable care in attending a patient. There, we held:

A failure to use such care in the treatment of patients is a violation of their duty to the patients and a departure from a condition of their employment. A physician who fails to use reasonable care in the treatment of a patient acts at his own risk, and is not entitled to invoke the doctrine of sovereign immunity.

221 Va. at 55, 267 S.E.2d at 114.

Further, in James we enumerated the factors to be considered in deciding where the lines of immunity shall be drawn. They were (1) function of the office; (2) the use of judgment and discretion (a consideration not necessarily determinative); and (3) degree of control and direction exercised by the state. 221 Va. at 53, 267 S.E.2d at 113. In this connection, the United States Supreme Court recently said in Harlow v. Fitzgerald, 457 U.S. 800, 813-14 (1982):

The resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative. . . . [I]t cannot be disputed seriously that claims frequently run against the innocent as well as the guilty—at a cost not only to the defendant officials, but to the society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will “dampen the ardor of all but the most resolute, or the most irresponsible [public officials] in the unflinching discharge of their duties.” [Citation omitted.]

With this background, we turn now to a consideration of the different offices.

[172]*172II. Division Superintendent.

The present public school system had its genesis in Acts 1869-70, c. 259, which provided in pertinent part:

2. The public free school system shall be administered by the following authorities, to wit: a board of education, a superintendent of public instruction, county superintendents of schools, and district school trustees.
14. The duties of each county superintendent of schools shall be as follows, viz:
First—To explain the school system upon all suitable occasions, and to promote an appreciation and desire of education among the people by all proper means in his power.

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Bluebook (online)
294 S.E.2d 862, 224 Va. 168, 1982 Va. LEXIS 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-sellers-va-1982.