Posted by: L | May 28, 2007

Sovereign Immunity and V-Tech

A comment on my V-Tech posts from Equitas – a human rights organization:

Eq Nunc | | | IP:

Good R&D LR. Take a look at this EQ Gateway and see what you can dig out of it. Pertinent links and legalogistics to wit! Perhaps some answers may be provided there too:

Happy Researching!
The EQ Team.

I looked through their site and found this article from last month on FindLaw by Professor Anthony Sebok of Brooklyn Law School.

I wish I had come across it earlier, as it answers some questions I’ve had about why the shooting was being framed by the school a certain way. But it substantially agrees with what I earlier (based on a conversation with a well-known attorney, who had pressed victims’ claims in a previous school shooting case) that gross negligence would have to be the standard here.

From Sebok’s article:

“Let’s suppose Cho had, in fact, gone to counseling, and that his therapist, concerned about his threats about certain students, warned those students about the threats. To fulfill its duty to take reasonable care, would the university have to assign security officers to follow those students – or Cho himself – around? And what if the threats were more general, or to an entire class full of students? Would the university have the duty to expel Cho and remove him from campus?”And more:
“The Second Key Question: Does It Matter that Virginia Tech Is a Public University?

Let’s suppose for a moment that the wounded victims and the families of the deceased victims can, in fact, prove that Virginia Tech failed to take adequate steps to protect its students. Unfortunately, their case would still fail – for the doctrine of sovereign immunity makes it almost impossible for the plaintiffs to collect significant damages even if they can prove negligence.

Sovereign immunity literally means that the government cannot be sued for its torts, even if it acts negligently (or worse). Originating in England before the American revolution, the doctrine has been largely abandoned in the U.K. and Europe. But it is alive and well – though partially waived by both the federal government and the states — in the United States.

Virginia’s waiver of sovereign immunity is pretty typical: The Virginia Tort Claims Act, Code §§ 8.01-195.1 through -195.9, states that “the Commonwealth shall be liable for claims for money . . . on account of . . . personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth . . ., if a private person, would be liable to the claimant for such . . . injury or death.”

You might think that Virginia Tech could be sued under this waiver. But you would be wrong. As the Virginia Supreme Court noted in the 2004 case of Rector & Visitors of the Univ. of Va. v. Carter, only the Commonwealth of Virginia has waived its sovereign immunity, but the Commonwealth’s agencies – such as the University and its various schools — have not.

Thus, in that case, Tina Carter’s medical malpractice suit against the University of Virginia Medical School was dismissed — although she, in theory, could have then refiled the suit against the Commonwealth of Virginia, if it was not barred by the statute of limitations. That’s because the Commonwealth of Virginia can be sued for the actions of its agents under a theory of vicarious liability.

Couldn’t the Virginia Tech plaintiffs just sue the Commonwealth, then? Yes, but here is where the final indignity comes in: The same Act limits the liability of the Commonwealth to $100,000 per tort. This amount, while not insignificant, is dwarfed by the amount of damages that might be won in a wrongful death claim brought on behalf of a college student or her surviving family. (By comparison, the 9/11 Victims Compensation Fund, which I have discussed in earlier columns such as this one, provided a minimum of $250,000 to the victims’ families, and in the case of young people who would have looked forward to long and lucrative careers, often much more.)

The Best Potential Basis for Suit: Evidence of Gross Negligence, If It Arises

In the end, the only realistic way for the plaintiffs to receive anything like the amount of the damages they have actually suffered, is to show that Virginia Tech acted with gross negligence.

As a Virginia-based federal court held in the 1995 case of Coppage v. Mann, sovereign immunity does not protect doctors employed by the state from tort suits if they acted with gross negligence. So too, the doctrine would presumably not protect university administrators and other employees if they acted with gross negligence. Nor would it protect their employer, even if it were an agent of the state.
In sum, if an investigation reveals negligence by Virginia Tech, and it can plausibly be argued to be gross negligence, then perhaps the wounded victims and the families of the deceased will be able to recover for the damages they actually incurred. But the law – thanks to the archaic sovereign immunity doctrine – sets the bar too high. Proof of negligence, even short of gross negligence, should be enough.”


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