Newport News School Board v. Z.M., a Minor

• Court: Supreme Court of Virginia
• Decided: May 8, 2025
• Docket: 1240833
• Status: Published

Opinion

PRESENT: Goodwyn, C.J., Kelsey, McCullough, Chafin, Russell, and Mann, JJ., and Millette, S.J.

NEWPORT NEWS SCHOOL BOARD OPINION BY v. Record No. 240833 JUSTICE STEPHEN R. McCULLOUGH May 8, 2025 Z.M., A MINOR BY AND THROUGH HIS NEXT FRIEND MATHEW HARVEY

UPON A PETITION UNDER CODE §§ 8.01-626 AND 8.01-670.2

The Newport News School Board appeals from a decision denying its plea of sovereign

immunity. At issue is whether Code § 22.1-194 waives the Commonwealth’s sovereign

immunity for degrading acts that school staff are alleged to have perpetrated on an autistic child

– acts alleged to have happened on a school bus, but which do not implicate the operation of the

bus as a means of transportation. We conclude that Code § 22.1-194, which waives sovereign

immunity when “a vehicle [is] involved in an accident,” does not waive sovereign immunity on

such alleged facts. Accordingly, we reverse the judgment of the circuit court and remand the

case for further proceedings.

BACKGROUND

Z.M. is a non-verbal autistic child. He attends the Center for Autism at Kiln Creek

Elementary School, which is part of Newport News Public Schools. He filed an action through

his father as next friend alleging that, while Z.M. was being transported on a school bus on the

way home, employees of the Newport News Public Schools struck him in the face, apparently

with Z.M.’s wet sock, twice told him that they wished they could “whip his tail” and, after Z.M.

had removed his pants and diaper, allowed him to leave the bus without any clothes on the lower

part of his body. The complaint also alleged that school employees insulted Z.M. the previous day, saying he was acting like an “animal” and a “monkey.” The complaint alleged negligence

and gross negligence by the School Board and gross negligence by certain named employees. It

sought compensatory and punitive damages of $15 million.

In response, the School Board filed a plea in bar, asserting that sovereign immunity

required dismissal of the School Board as a party. The circuit court denied the plea in part and

granted it in part. Relying on Code § 22.1-194, the circuit court denied the plea with respect to

Z.M.’s claims of simple and gross negligence against the School Board. The circuit court,

however, granted the plea on the question of punitive damages, holding that sovereign immunity

foreclosed such damages. The School Board filed an interlocutory appeal under Code

§§ 8.01-626 and 8.01-670.2. These statutes allow a party to appeal from a granted or denied plea

of sovereign immunity. We awarded the School Board an appeal and now reverse.

ANALYSIS

We “review de novo a trial court’s ruling on a plea of sovereign immunity.” Pike v.

Hagaman, 292 Va. 209, 214 (2016).

Alexander Hamilton wrote in Federalist 81 that “[i]t is inherent in the nature of

sovereignty not to be amenable to the suit of an individual without consent.” The ancient

doctrine of sovereign immunity, while often controversial, “is alive and well in Virginia.”

Messina v. Burden, 228 Va. 301, 307 (1984). “Absent an express statutory or constitutional

provision waiving sovereign immunity, the Commonwealth and its agencies are immune from

liability for the tortious acts or omissions of their agents and employees.” Rector and Visitors of

the University of Virginia v. Carter, 267 Va. 242, 244 (2004). School boards are covered by

sovereign immunity. Kellam v. School Bd. of the City of Norfolk, 202 Va. 252 (1960).

2 “Sovereign immunity is a rule of social policy, which protects the state from burdensome

interference with the performance of its governmental functions and preserves its control over

state funds, property, and instrumentalities.” City of Virginia Beach v. Carmichael Dev. Co., 259

Va. 493, 499 (2000). “Most importantly, the doctrine of sovereign immunity provides for

‘smooth operation of government’ and prevents citizens from ‘improperly influencing the

conduct of governmental affairs through the threat or use of vexatious litigation.’” Id. (quoting

Messina, 228 Va. at 308).

The General Assembly has waived sovereign immunity in a number of circumstances.

One such waiver of sovereign immunity is found in Code § 22.1-194. That statute provides:

§ 22.1-194. Liability of locality or school board owning or operating vehicle. In case the locality or the school board is the owner, or operator through medium of a driver, of, or otherwise is the insured under the policy upon, a vehicle involved in an accident, the locality or school board shall be subject to action up to, but not beyond, the limits of valid and collectible insurance in force to cover the injury complained of or, in cases set forth in subsection D of § 22.1-190, up to but not beyond the amounts of insurance required under subsection A of § 22.1-190 and the defense of governmental immunity shall not be a bar to action or recovery. In case of several claims for damages arising out of a single accident involving a vehicle, the claims of pupils and school personnel, excluding driver when not a pupil, shall be first satisfied. In no event, except where approved self-insurance has been provided pursuant to subsection D of § 22.1-190, shall school funds be used to pay any claim or judgment or any person for any injury arising out of the operation of any such vehicle. The locality or school board may be sued alone or jointly with the driver, provided that in no case shall any member of a school board be liable personally in the capacity of school board member solely.

“[T]his statute abrogates the immunity of a school board for acts of simple negligence ‘to

a limited degree’ and when the conditions of the statute are met.” Linhart v. Lawson, 261 Va.

30, 33 (2001) (quoting Wagoner v. Benson, 256 Va. 260, 262-64 (1998)).

3 The arguments of the parties center on whether the waiver of sovereign immunity found

in Code § 22.1-194 contains one prerequisite or two. The School Board argues that two

conditions must be satisfied for sovereign immunity to be waived under this statute: (1) a

vehicle owned or operated by a school board must be “involved in an accident” and (2) insurance

coverage must be available. The plaintiff responds that the statute contains only one prerequisite

for sovereign immunity to be waived and that is the existence of insurance coverage. The

plaintiff maintains that the statute does not require the involvement of a school board vehicle in

an accident.

In interpreting a statute, we seek “to effectuate the intent of the legislature as expressed

by the plain meaning of the words used in the statute.” Llewellyn v. White, 297 Va. 588, 595

(2019). Accordingly, we “appl[y] the plain language unless the words are ambiguous or such

application would render the law internally inconsistent or incapable of operation.” Id. In

addition, waivers of sovereign immunity are strictly construed. Carter, 267 Va. at 245 (citing

cases).

The plain language of Code § 22.1-194 contains two prerequisites for a waiver of

sovereign immunity. First, a “vehicle” owned, operated, or insured by a school board must be

“involved in an accident.” The waiver does not apply across the board to any situation covered

by an insurance policy; rather, it applies when the specified vehicles are “involved in an

accident.” We are not at liberty to ignore this language. Second, the waiver applies if there is

insurance coverage, and only to the extent of such coverage. Code § 22.1-194. Here, the parties

do not dispute that insurance coverage is available. However, we conclude that the waiver of

sovereign immunity does not apply because, in this instance, the bus was not a “vehicle involved

in an accident.”

4 The term “accident” can be defined in many ways. In common parlance, a vehicular

accident can mean a collision between two vehicles, a collision between a vehicle and an object,

or a vehicle running off the road. Linhart v. Lawson, where the plaintiff’s vehicle was struck by

a school bus, is one such typical case. Code § 22.1-194 broadly provides that a vehicle must be

“involved” in an accident, not that the vehicle itself must be damaged in any way or that it must

collide with another vehicle or object. In this case, we need not establish the outer reach of what

the term “accident” might mean because the allegations here – that the plaintiff was struck,

insulted, and allowed to leave the bus partially unclothed – do not even plausibly establish the

prerequisite of a vehicle “involved in an accident.” The school bus itself was not involved in any

accident. The plaintiff’s injuries do not relate in any way to the way the bus was being operated

or to the process of loading or unloading of passengers. Instead, the school bus was merely the

situs of the alleged tort. In other words, the actions that are the subject of the complaint may

have happened on the bus, but they did not involve the bus as a vehicle.

Our decision in Wagoner is not to the contrary. In that case, our opinion tracked the

parties’ presupposition that there had been an accident – a child was struck while walking

towards a school bus – and we proceeded to determine whether the insurance policy at issue

provided coverage. 256 Va. at 262-64. We simply did not address the contours of the

requirement that there must be “a vehicle involved in an accident.”

Finally, the plaintiff argues that the School Board is not immune when it comes to claims

of gross negligence. Although government employees are not immune from claims of gross

negligence, James v. Jane, 221 Va. 43, 53 (1980), the School Board itself benefits from

immunity from suit, whether the claims involve simple negligence, gross negligence, or even

intentional torts. See Patten v. Commonwealth, 262 Va. 654, 658 (2001) (“In the absence of

5 express statutory or constitutional provisions waiving the Commonwealth’s immunity, the

Commonwealth and its agencies are immune from liability for the tortious acts or omissions of

their agents and employees.”); Niese v. City of Alexandria, 264 Va. 230, 239-40 (2002)

(municipality was immune from an action alleging an intentional tort was committed in the

performance of governmental functions). The cases Z.M. cites all involved allegations of gross

negligence against an employee of the government, not the actual sovereign itself. Burns v.

Gagnon, 283 Va. 657, 677 (2012) (addressing liability of assistant principal following a fight at

the school); Cromartie v. Billings, 298 Va. 284, 297 (2020) (addressing claims against a former

police officer for, among other things, excessive force and false arrest); James, 221 Va. at 53

(addressing action brought against several doctors).

Although sovereign immunity protects the School Board from suit, the same is not true

for the School Board employees Z.M. has sued. Because the plaintiff alleges that these

employees were grossly negligent, the action may proceed against the employees, who are not

protected by derivative sovereign immunity in that circumstance.

CONCLUSION

The judgment of the circuit court is reversed and the case is remanded.

Reversed and remanded.