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THIS is Outrageous and Why We Need to Reform Sovereign Immunity!

This NBC 12 TV story illustrates why sovereign immunity (SI) is inherently unfair and needs abolition or at least reform.  I discussed this issue in more detail and if I ever go the BTSED route for the legislature in a future election I intend to discuss it.

The story is that a young lady’s car was sideswiped by a Richmond City fire truck on the way to a call.  The City said no payment because even though it was their fault (I am not sure if the city admitted negligence or assumed it for purposes of the claim) because they are covered under sovereign immunity unless their actions were grossly negligent.

Now the lady has two choices:  Pay the bill (thankfully she was not hurt) or file a claim against her own insurance which might result in a rate increase.

Actually, she can ask City Council to pay the claim in its mercy.  The king cannot be sued in his own courts is the basis for sovereign immunity but the king can accept a direct appeal to his conscience.

This citizen will probably win her claim, largely because of the bad publicity and the paucity of the damages.  And to be fair, the negligence on a fire call ought to be high to prevail.  Slight fault ought not be enough.  But SI is still unfair:

  • In a democracy, the government is our servants and accountable to the people.  Sovereign immunity removes the accountability, which leads to..
  • The existence of sovereign immunity might cause just a bit of less care by our servants – even on fire calls.

So what do you propose, Sandy, to prevent frivolous claims?  The states that have abolished sovereign immunity tend to require liability policies in place and the immunity is waived up to the limits of the policy.  The usual rule will be no discussion of insurance in the trial.

And the bugbear of frivolous lawsuits is overborne.  Yes there are patently frivolous lawsuits but many of the examples cited for frivolity are not so meritless when they are examined:  Example is the McDonald’s coffee suit.  The coffee cups had coffee heated to 170 or 180 degrees that is inherently dangerous and it was reasonably foreseeable that a driver in the drive in lane might place the hot cup between her legs.  And since there was comparative negligence in Michigan where the suit was brought, her negligence in placing the hot cup between her legs was factored into the final award.  (I do not believe in comparative negligence and in Virginia, McDonald’s would likely win as she was partly negligent.)

Sovereign immunity corrodes accountability of the servants of the people from negligent acts.  It also has other pitfalls such as unequal duties to potential victims depending on a private or public actor committing the injury to the victim.  It needs reform right away.  I would like to see some of the BTSED candidates I have encouraged to run in unopposed elections discuss SI along with adequate indigent defense services in the Commonwealth.  Your Sixth Amendment rights to a lawyer should not depend on which county or city you are arrested in.

 

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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