Alexandria, VA

If your property is damaged by a city vehicle, there’s a good chance you could be out of luck when it comes to seeking payment.

With its blue background and city seal, the marker set up in the yard at Shuter’s Hill within eyeshot of the backside of the George Washington Masonic National Memorial could be mistaken for an official sign, but the sign tells the story of one resident’s struggle with the City of Alexandria over an archaic legal precedent.

According to the sign, a city truck struck the fence on May 22 and was captured on video, but the city has claimed sovereign immunity — a term derived from British common law doctrine that means the government cannot be sued without its permission.

This isn’t the first time damages from an garbage truck has led to frustrations over sovereign immunity. Across Virginia, there have been several instances of localities citing sovereign immunity when faced with costly liability charges, according to Washingtonian.

Craig Fifer, a spokesman for the City of Alexandria, said logistically that paying claims would necessitate an increase in taxes and fees, reductions in services, or other savings:

The City’s services are designed and operated to provide the maximum benefit to the community.  Under federal and state laws and court rulings, the City is generally not liable for damages caused in the course of providing core government services. While the City conducts extensive planning and training to avoid damaging property, some damage does occur given the vast scope of City operations. Exemption from these claims saves a significant amount of money every year for taxpayers as a whole.  If the City were to pay claims for which it is not legally liable, it would necessitate some combination of increases in taxes and fees, reductions in services, or savings in other areas.

The City is expected to defend itself against claims for which it is not legally liable. If the claim involves a core government function (including trash collection), sovereign immunity would apply. If the claim involved another situation (such as the operation of a City vehicle while not performing a core government function), sovereign immunity would not apply and the claim would be paid if appropriate.

Jonathan Siegel, a law professor at George Washington University, said the arguments over sovereign immunity aren’t new.

“This has been around forever,” Siegel said. “It’s a fundamental feature of government and it causes all kinds of problems for centuries. Ever since the founding of the nation, it’s been legally true that governments have sovereign immunity.”

Questions over sovereign immunity were one of the first debated in the newly independent United States. Siegel said after the Revolutionary War, many states that took out loans to finance military operations were not able to pay back their bonds. The first amendment to the Constitution that wasn’t part of the Bill of Rights, the 11th Amendment, restricted the ability of individuals to sue states in federal court.

Whether this applies to cities depends on state law, Siegel said. In Virginia, Professor Frank Shafroth, director of the Center for State and Local Leadership at George Mason University, said that legal protection extends to cities.

“The city is precluded under Virginia law from waiving sovereign immunity, as are all other Virginia localities,” said Shafroth. “From a Virginia Supreme Court decision City of Virginia Beach v. Carmichael: 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.”

“Sovereign immunity applies to all Virginia cities and counties, with counties having immunity for both governmental and proprietary functions, while cities do not have immunity from the exercise of proprietary functions,” he added.

The test as to whether the function is proprietary or governmental is whether it’s contributing to the common good of all or whether there is a special corporate or pecuniary benefit, according to Fenon v. City of Norfolk.

Shafroth said there are still specific limits to that protection.

“Governmental functions, for example, are ministerial acts, such as the active collection of garbage, but such immunity does not extend to all actions related to the collection of refuse, such as driving a refuse truck to a repair shop to get it fixed,” Shafroth said.

The legal protections could be changed at the state level, Siegel said, but the incidents in which it applies are generally so isolated that there’s no political willpower behind the push.

“It’s in the power of the state legislature to change these things,” Siegel said. “But this tends to affect people one at a time so there’s no real organized lobby. No one imagines this is going to happen to them.”

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