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Virginia Police Officers Entitled to Sovereign Immunity in Wrongful Death Suit

Virginia Police Officers Entitled to Sovereign Immunity in Wrongful Death Suit

The Virginia Supreme Court has held that two Virginia police officers accused in the wrongful death of a cyclist were not liable due to sovereign immunity.

City of Norfolk Police Officers Joey Bennett and Derek Folston were speeding toward a non-emergency disturbance despite police policy to follow traffic laws. Folston struck cyclist Donnell Worsley, killing him, as both swerved into the same lane. Carolyn McBride, administrator of Worsley’s estate, filed a wrongful death suit and raised a simple negligence claim against the officers in the Circuit Court for the City of Norfolk. The circuit court held that the officers’ exercise of discretion protected them from liability pursuant to sovereign immunity. McBride appealed and on October 31, 2014; the Virginia Supreme Court affirmed.

On July 25, 2010, Bennett answered a 12:00 a.m. call to a domestic disturbance. Folston overheard the dispatch and elected to provide backup because he was close and the other unit that had been designated to assist was further away. As the dispatch had not been assigned a response code, police policy dictates “Code 3”: “Emergency lights and/or siren will not be used. All posted signs and traffic laws will be observed.”

As the officers drove over the Campostella Bridge, Folston testified that he had begun speeding and fell in line behind Bennett. Bennett stopped quickly as he spotted Worsley riding his bike toward him in the same lane. Worsley then swerved into the opposite lane just as Folston did the same to avoid hitting Bennett from behind. When he swerved Folston hit Worsley instead and Worsley died from his injuries. McBride subsequently filed suit against the officers, alleging negligence and seeking damages. After a hearing before the circuit court, the court determined that the officers were entitled to sovereign immunity and McBride appealed.

The question before the Court in deciding if the officers were entitled to sovereign immunity against the claim was “whether the act complained of involved the use of judgment and discretion.” In examining a government official’s function while driving, the appellate court has held that sovereign immunity applies when driving mandates a “degree of judgment and discretion beyond ordinary driving situations in routine traffic,” such as in the current case. The court also stated the importance of determining whether the official’s “act embraces ‘special risks’ in order to effectuate a governmental purpose” and additionally that “the [officer’s] evaluation of the situation must be objectively reasonable.”

In affirming the circuit court’s judgment, the Court concluded that the officers’ actions met these requirements and rejected McBride’s argument that sovereign immunity did not apply as police policy had not authorized the officers’ conduct. Policy, the Court held, cannot replace the decisions an officer has to make in dangerous situations. See: McBride v. Bennett, 288 Va. 450 (Va. 2014).

Related legal case

McBride v. Bennett