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Articles Posted in Premises Liability

The COVID-19 crisis has essentially shut down large portions of society in Virginia and across the United States. To prevent – or at least slow – the spread of the virus, state governors across the country implemented a variety of stay-at-home, or shelter-in-place, orders. In Virginia, Governor Northam’s executive order requires that non-essential businesses close and that residents stay in their homes, with a few limited exceptions:

  • To seek medical attention
  • To work

Historically, under the theory of sovereign immunity, private citizens were not permitted to file lawsuits against the government. Sovereign immunity left citizens with no recourse against the government in Virginia personal injury accidents involving government officials. To address the fundamental unfairness of sovereign immunity, the government enacted the Federal Tort Claims Act (FTCA). The FTCA provides citizens with a mechanism to hold the federal government and its employees liable for their negligent actions. However, the FTCA has several important exceptions, most notably the “discretionary function” exception.

The discretionary function exception can significantly limit a Virginia injury victim’s right to recover against the government. This exception bars lawsuits against the federal government that are a result of the government actor’s judgment. Legislators included this exception in an attempt to prevent “judicial second-guessing,” and Virginia plaintiffs are tasked with overcoming a two-step inquiry before their lawsuit can proceed.

The first step in the inquiry requires the court to decide whether the challenged action was a discretionary one. The court will look at if the actor’s negligent act involved a matter of a choice or judgment. If the court finds that the decision was discretionary, they will then evaluate public policy concerns and determine whether the decision was grounded in social, political, or policy matters. If so, immunity may attach. The second prong is very broad, and many cases fail at this step. If a Virginia plaintiff’s claim meets these two prongs, their case will be able to proceed.

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