COURT OF APPEALS OF VIRGINIA
Present: Judges Fulton, Ortiz and Lorish UNPUBLISHED
Argued by videoconference
CAROL NORMAN DREW MEMORANDUM OPINION* BY v. Record No. 0188-24-1 JUDGE LISA M. LORISH JUNE 17, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Marjorie A. Taylor Arrington, Judge
Carol Norman Drew, pro se.
No brief or argument for appellee.
Carol Norman Drew sued the Commonwealth under the Virginia Tort Claims Act
(VTCA), alleging that the Commonwealth was negligent through actions and inactions that led
him to contract the COVID-19 virus while incarcerated. The trial court granted the
Commonwealth’s plea in bar based on sovereign immunity after concluding that methods of
imprisonment were proprietary rather than governmental functions, applying the test that governs
liability of municipalities. We reverse the trial court’s judgment and remand for further
proceedings because our decision in Commonwealth v. Muwahhid, 77 Va. App. 821, 832 (2023),
makes clear that the test for municipal liability does not apply in suits against the Commonwealth
under the VTCA.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
During the COVID-19 pandemic, Drew was incarcerated at St. Brides Correctional Center,
which is operated by the Virginia Department of Corrections (VDOC). In January 2021, Drew
resided in housing unit 330-A with other inmates, including Young Dozier. On January 18, 2021,
Dozier experienced a fever, dizziness, and a headache, so he met with a nurse. The nurse did not
administer a COVID-19 test, but nonetheless told Dozier that he did not have COVID-19. She
returned him to housing unit 330-A without any testing. On January 20, 2021, Drew began
experiencing symptoms consistent with COVID-19. On January 23, 2021, Dozier and Drew tested
positive for COVID-19. Drew’s sickness caused headaches, fever, dizziness, and pain in his neck,
back, and shoulders, in addition to a loss of taste and smell.
Drew sued the Commonwealth for negligence under the VTCA. He alleged that the
Commonwealth owed him a “general duty of care to prevent him from being injured and
contracting COVID-19 from Dozier.” In support of his assertion that the Commonwealth owed him
a duty of care, Drew attached to his complaint a letter from VDOC to inmates state-wide stating that
“[s]lowing the spread of this virus is everyone’s responsibility.” Drew alleged that the
Commonwealth breached its duty by not immediately separating him and Dozier when Dozier
exhibited and reported COVID-19 symptoms.
Responding to Drew’s complaint, the Commonwealth filed a plea in bar and demurrer based
on sovereign immunity. The Commonwealth argued that the VTCA does not permit lawsuits
pursuing constitutional claims such as those alleging cruel and unusual punishment or a violation of
1 “Where no evidence is taken in support of a plea in bar, the trial court, and the appellate court upon review, consider solely the pleadings in resolving the issue presented.” Gray v. Va. Sec’y of Transp., 276 Va. 93, 97 (2008) (quoting Niese v. City of Alexandria, 264 Va. 230, 233 (2002)). “The facts as stated in the pleadings by the plaintiff are taken as true for the purpose of resolving the special plea.” Niese, 264 Va. at 233. “We are not bound, however, by the ‘conclusory allegations’ set forth in the” pleadings. Terry v. Irish Fleet, Inc., 296 Va. 129, 133 (2018) (quoting Brown v. Jacobs, 289 Va. 209, 212 n.2 (2015)). -2- due process rights. Drew responded that his negligence suit did not assert constitutional claims but
was a negligence action properly brought under the VTCA. The Commonwealth moved for
summary judgment, arguing that there were no disputed facts about whether the Commonwealth
owed a duty of care to prevent Drew from getting COVID-19, or whether the Commonwealth had
breached that duty. Drew also moved for summary judgment. After their summary judgment briefs
were filed, this Court issued its decision in Muwahhid, 77 Va. App. at 821.
A few months later, in a letter opinion, the trial court relied on City of Chesapeake v.
Cunningham, 268 Va. 624, 633-34 (2004), to hold that “[b]ecause methods of imprisonment are
governmental functions, the Commonwealth possesses sovereign immunity” and thus ruled that
“there is no express abrogation of that immunity applicable in the instant case.” As a result, the trial
court sustained the Commonwealth’s plea in bar and dismissed the case with prejudice without
ruling on the pending motions for summary judgment. The trial court denied Drew’s motion to
reconsider. Drew now appeals.
ANALYSIS
“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s
recovery.” Massenberg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Hawthorne v.
VanMarter, 279 Va. 566, 577 (2010)). “We review de novo a trial court’s ruling on a plea of
sovereign immunity.” Pike v. Hagaman, 292 Va. 209, 214 (2016).
Under the doctrine of sovereign immunity, “the Commonwealth and its agencies are
immune from liability for the tortious acts or omissions of their agents and employees” unless an
“express statutory or constitutional provision[] waiv[es] immunity.” Melanson v. Commonwealth,
261 Va. 178, 181 (2001). Such a waiver “will not be implied from general statutory language but
must be explicitly and expressly stated in the statute.” Alliance to Save the Mattaponi v.
Commonwealth Dep’t of Env’t Quality ex rel. State Water Control Bd., 270 Va. 423, 455 (2005).
-3- “In 1981, the General Assembly enacted the [VTCA] which provides for an express, limited
waiver of the Commonwealth’s immunity from tort claims.” Canter v. Commonwealth, 82
Va. App. 593, 602 (2024) (alteration in original) (quoting Rector & Visitors of the Univ. of Va. v.
Carter, 267 Va. 242, 244 (2004)). “[B]ut the waiver is a limited one and the VTCA, being an
enactment in derogation of the common law, is strictly construed.” Id. (quoting Doud v.
Commonwealth, 282 Va. 317, 321 (2011)). The VTCA’s “private-person clause” waives the
Commonwealth’s sovereign immunity in civil suits for personal injury “under circumstances where
the Commonwealth . . . if a private person, would be liable to the claimant for such damage, loss,
injury or death.” Code § 8.01-195.3.
In Muwahhid, 77 Va. App. at 830, this Court rejected the Commonwealth’s argument that a
“private person cannot operate a prison” and that the “private-person clause” means that the
Commonwealth is immune “from tort liability where the allegedly tortious act or omission arises
from the performance of any governmental function.” The Court concluded that the plain text of the
VTCA requires the opposite result for suits against the Commonwealth:
It focuses not on whether a private person “could” perform the same activity but whether liability “would” exist if the Commonwealth were swapped with a private person. If a claimant would have a legitimate cause of action against a private person under traditional tort principles—duty, breach, proximate causation, and damages— then the Commonwealth has waived its immunity for such a claim and may be liable just as a private person would.
Id. This contrasts with the rule for municipalities. Sovereign immunity protects municipalities only
when they are exercising “‘governmental functions’—that is, those ‘powers and duties performed
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COURT OF APPEALS OF VIRGINIA
Present: Judges Fulton, Ortiz and Lorish UNPUBLISHED
Argued by videoconference
CAROL NORMAN DREW MEMORANDUM OPINION* BY v. Record No. 0188-24-1 JUDGE LISA M. LORISH JUNE 17, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Marjorie A. Taylor Arrington, Judge
Carol Norman Drew, pro se.
No brief or argument for appellee.
Carol Norman Drew sued the Commonwealth under the Virginia Tort Claims Act
(VTCA), alleging that the Commonwealth was negligent through actions and inactions that led
him to contract the COVID-19 virus while incarcerated. The trial court granted the
Commonwealth’s plea in bar based on sovereign immunity after concluding that methods of
imprisonment were proprietary rather than governmental functions, applying the test that governs
liability of municipalities. We reverse the trial court’s judgment and remand for further
proceedings because our decision in Commonwealth v. Muwahhid, 77 Va. App. 821, 832 (2023),
makes clear that the test for municipal liability does not apply in suits against the Commonwealth
under the VTCA.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
During the COVID-19 pandemic, Drew was incarcerated at St. Brides Correctional Center,
which is operated by the Virginia Department of Corrections (VDOC). In January 2021, Drew
resided in housing unit 330-A with other inmates, including Young Dozier. On January 18, 2021,
Dozier experienced a fever, dizziness, and a headache, so he met with a nurse. The nurse did not
administer a COVID-19 test, but nonetheless told Dozier that he did not have COVID-19. She
returned him to housing unit 330-A without any testing. On January 20, 2021, Drew began
experiencing symptoms consistent with COVID-19. On January 23, 2021, Dozier and Drew tested
positive for COVID-19. Drew’s sickness caused headaches, fever, dizziness, and pain in his neck,
back, and shoulders, in addition to a loss of taste and smell.
Drew sued the Commonwealth for negligence under the VTCA. He alleged that the
Commonwealth owed him a “general duty of care to prevent him from being injured and
contracting COVID-19 from Dozier.” In support of his assertion that the Commonwealth owed him
a duty of care, Drew attached to his complaint a letter from VDOC to inmates state-wide stating that
“[s]lowing the spread of this virus is everyone’s responsibility.” Drew alleged that the
Commonwealth breached its duty by not immediately separating him and Dozier when Dozier
exhibited and reported COVID-19 symptoms.
Responding to Drew’s complaint, the Commonwealth filed a plea in bar and demurrer based
on sovereign immunity. The Commonwealth argued that the VTCA does not permit lawsuits
pursuing constitutional claims such as those alleging cruel and unusual punishment or a violation of
1 “Where no evidence is taken in support of a plea in bar, the trial court, and the appellate court upon review, consider solely the pleadings in resolving the issue presented.” Gray v. Va. Sec’y of Transp., 276 Va. 93, 97 (2008) (quoting Niese v. City of Alexandria, 264 Va. 230, 233 (2002)). “The facts as stated in the pleadings by the plaintiff are taken as true for the purpose of resolving the special plea.” Niese, 264 Va. at 233. “We are not bound, however, by the ‘conclusory allegations’ set forth in the” pleadings. Terry v. Irish Fleet, Inc., 296 Va. 129, 133 (2018) (quoting Brown v. Jacobs, 289 Va. 209, 212 n.2 (2015)). -2- due process rights. Drew responded that his negligence suit did not assert constitutional claims but
was a negligence action properly brought under the VTCA. The Commonwealth moved for
summary judgment, arguing that there were no disputed facts about whether the Commonwealth
owed a duty of care to prevent Drew from getting COVID-19, or whether the Commonwealth had
breached that duty. Drew also moved for summary judgment. After their summary judgment briefs
were filed, this Court issued its decision in Muwahhid, 77 Va. App. at 821.
A few months later, in a letter opinion, the trial court relied on City of Chesapeake v.
Cunningham, 268 Va. 624, 633-34 (2004), to hold that “[b]ecause methods of imprisonment are
governmental functions, the Commonwealth possesses sovereign immunity” and thus ruled that
“there is no express abrogation of that immunity applicable in the instant case.” As a result, the trial
court sustained the Commonwealth’s plea in bar and dismissed the case with prejudice without
ruling on the pending motions for summary judgment. The trial court denied Drew’s motion to
reconsider. Drew now appeals.
ANALYSIS
“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s
recovery.” Massenberg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Hawthorne v.
VanMarter, 279 Va. 566, 577 (2010)). “We review de novo a trial court’s ruling on a plea of
sovereign immunity.” Pike v. Hagaman, 292 Va. 209, 214 (2016).
Under the doctrine of sovereign immunity, “the Commonwealth and its agencies are
immune from liability for the tortious acts or omissions of their agents and employees” unless an
“express statutory or constitutional provision[] waiv[es] immunity.” Melanson v. Commonwealth,
261 Va. 178, 181 (2001). Such a waiver “will not be implied from general statutory language but
must be explicitly and expressly stated in the statute.” Alliance to Save the Mattaponi v.
Commonwealth Dep’t of Env’t Quality ex rel. State Water Control Bd., 270 Va. 423, 455 (2005).
-3- “In 1981, the General Assembly enacted the [VTCA] which provides for an express, limited
waiver of the Commonwealth’s immunity from tort claims.” Canter v. Commonwealth, 82
Va. App. 593, 602 (2024) (alteration in original) (quoting Rector & Visitors of the Univ. of Va. v.
Carter, 267 Va. 242, 244 (2004)). “[B]ut the waiver is a limited one and the VTCA, being an
enactment in derogation of the common law, is strictly construed.” Id. (quoting Doud v.
Commonwealth, 282 Va. 317, 321 (2011)). The VTCA’s “private-person clause” waives the
Commonwealth’s sovereign immunity in civil suits for personal injury “under circumstances where
the Commonwealth . . . if a private person, would be liable to the claimant for such damage, loss,
injury or death.” Code § 8.01-195.3.
In Muwahhid, 77 Va. App. at 830, this Court rejected the Commonwealth’s argument that a
“private person cannot operate a prison” and that the “private-person clause” means that the
Commonwealth is immune “from tort liability where the allegedly tortious act or omission arises
from the performance of any governmental function.” The Court concluded that the plain text of the
VTCA requires the opposite result for suits against the Commonwealth:
It focuses not on whether a private person “could” perform the same activity but whether liability “would” exist if the Commonwealth were swapped with a private person. If a claimant would have a legitimate cause of action against a private person under traditional tort principles—duty, breach, proximate causation, and damages— then the Commonwealth has waived its immunity for such a claim and may be liable just as a private person would.
Id. This contrasts with the rule for municipalities. Sovereign immunity protects municipalities only
when they are exercising “‘governmental functions’—that is, those ‘powers and duties performed
exclusively for the public welfare’—but not for ‘proprietary functions,’ which ‘are performed
primarily for the benefit of the municipality.’” Id. at 832 (quoting Cunningham, 268 Va. at
633-34).
-4- Thus, in Muwahhid, we explicitly rejected the use of the municipal liability test in suits
against the Commonwealth for the manner in which prison personnel effectuated its policies. Id.
at 836 (rejecting the “collapsing” of the municipal liability test into the VTCA). “Were the
private-person clause to mean that the VTCA does not waive sovereign immunity whenever the
government performs any governmental function, then the VTCA would not need any of the
explicit exceptions” enumerated in the statute, “all of which describe quintessential governmental
functions.” Id. at 831. Based on the “plain meaning of the VTCA,” “[i]f a claimant would have a
legitimate cause of action against a private person under traditional tort principles—duty, breach,
proximate causation, and damages—then the Commonwealth has waived its immunity for such a
claim and may be liable just as a private person would.” Id. at 830.
Drew argues that the trial court erred in ruling that the Commonwealth was immune from
suit because it was performing a governmental function under the municipal liability test.2 We
agree that sovereign immunity here does not turn on whether the Commonwealth was
performing a “governmental function.” As we held in Muwahhid, “nothing in the plain text of
the private-person clause or its surrounding language suggests the distinct test for municipal
liability should apply.” Id. at 832. Thus, the trial court erred by focusing on whether the
Commonwealth was performing a “governmental function,” an inquiry relevant only to the
municipal liability context, which is not present here.
The Commonwealth asserted a defense of sovereign immunity through a plea in bar. “The
party asserting a plea in bar bears the burden of proof on the issue presented.” VanMarter, 279 Va.
at 577. As the Commonwealth did not present any other argument as to why sovereign immunity
2 Although the trial court did not explicitly state which test it used to determine whether sovereign immunity applied, its ruling found the Commonwealth immune for performing a “governmental function” and cited to Cunningham, which implies the use of the municipal liability test. -5- should apply here, we reverse and remand the trial court’s judgment sustaining the
Commonwealth’s plea in bar based on the “governmental function” test.3
CONCLUSION
For these reasons, we reverse the trial court’s judgment sustaining the Commonwealth’s
plea in bar and remand the case for further proceedings consistent with this opinion.
Reversed and remanded.
3 In so ruling, we pass no judgment on the merits of either pending motion for summary judgment. -6-