Virginia Court Weighs in on Refuse Truck Driver’s Liability for Ignoring Stop Sign

When unsafe behavior by a government employee injures someone and the victim goes to court, the first question is usually whether the lawsuit can proceed.  Can the worker and his or her employer be legally untouchable?  

The federal government as well as state and tribal governments are, for the most part, protected from civil lawsuits by the doctrine of sovereign immunity, also known as governmental immunity. The classical concept of sovereignty is illustrated by the maxim “the King can do no wrong.” A ruling authority had no accountability to the citizenry.  

These days, government immunity falls into two categories: absolute and qualified.  Absolute immunity means a government actor may not be sued for the allegedly wrongful act, even if that person behaved recklessly or maliciously.  Absolute immunity typically covers situations where challenges would substantially impair key government operations.  Qualified immunity will shield a government actor from liability only in certain circumstances.  When and where are, as a rule, spelled out in legislation or by judicial rulings. Local governments and their employees in most jurisdictions are exempt from some types of legal actions, but targetable in others. 

Partway into his assigned trash collection route for the day, Jason Ellis, an equipment operator for the city of Chesapeake, Virginia, approached an intersection with a stop sign governing his path.  Rather than come to a complete stop, he rolled through the stop sign.  Though he looked for oncoming traffic, Ellis later testified that garbage trucks "have blind spots and sometimes vehicles will pass just that fast." As he entered the intersection, a car driven by Taylor Jolley, coming from the right and without a stop sign, collided with the truck and flipped on its side. Jolley sustained serious injuries. Following the crash, Ellis was charged and convicted for failing to obey the sign.

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Jolley sued Ellis and the city in the Circuit Court of Chesapeake, alleging simple negligence.  The defendants responded with a claim of sovereign immunity. Many Virginia court decisions have addressed the question of when a government employee driving a vehicle is immune from suit. When the operation of a vehicle involves ordinary driving, the employee's actions are ministerial, not discretionary, and ministerial acts get no immunity.

At a hearing on the defense claim, Ellis described the crash and the actions involved in completing a garbage collection route. He explained that when he approaches a can on the route, it is "up to me, the operator, whether I get out and move it or if it's where I can grab the can with the claw and dump it into the truck."  

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Ellis has about 800 houses on his route; every time he dumps a can, his counter records the operation. Normally, he puts the contents of 400 to 500 cans on a truck before he has to unload it.  However, during certain times of the year more garbage is put out for collection, requiring Ellis to leave his route before he is halfway through to dump the load before going “back to where [he] left off." When asked if "between cans, [he was] doing anything different than if [he] were just normally driving down the street in [his] own car," Ellis said, “no.”  Instead, what he does between stops is "look for [his] surroundings and make sure all is clear," so he can "get [the] can, dump it, and go to the next one."

Circuit Judge Robert G. McDonald granted the city and Ellis immunity from suit, saying "[D]uring this period en route going from can to can, having been ten percent in his route, counting every single bin that is dumped into his can," there were "special risks" for this unique process and that "the exercise of judgment and discretion were required throughout this route.”  

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Judge McDonald reasoned that Ellis "counts every bin at each home," and makes a "determination as he approaches each and every bin," and then exercises that discretion "prior to ever extracting that arm, [or] touching that joystick."  He determined that the entire act of  garbage collection required ongoing discretion and judgment, despite the ordinary driving between individual stops along the route.

On appeal, the three-judge panel examined the lower court’s factual findings in support of its immunity ruling.  Concluding that the trial judge had wrongly interpreted the evidence and misapplied the law, the panel overturned his decision and returned the case to him for further proceedings.

To determine whether a government employee is entitled to sovereign immunity, Virginia courts examine four factors:  

                (1) the nature of the function performed by the employee;

                (2) the extent of the government's interest and involvement in the function;

                (3) the control and direction exercised by the government over the employee; and

                (4) whether the act complained of involved the use of judgment and discretion.

In this case only the fourth factor was disputed: whether Ellis used judgment and discretion at the time of the collision.

Under Virgina law, ministerial acts, which are not entitled to immunity, tend to be acts performed in a “prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, [one’s] own judgment upon the propriety of the act being done."

The panel noted that drawing the line between discretionary and ministerial acts can be difficult when a government employee is involved in an accident while driving a government vehicle. In such cases, the panel wrote, "we look to whether the means of effectuating the applicable government function involves ordinary driving in routine traffic versus driving that requires a degree of judgment and discretion beyond ordinary driving situations in routine traffic.”

One way to distinguish acts of driving is to assess whether a vehicle is serving as a means of transportation to the place where the governmental function is to be performed, or whether driving the vehicle is the means of carrying out the official function. Governmental immunity tends to protect drivers in the latter case because, besides operating the vehicle, the driver must

exercise discretion and judgment to carry out the official purpose. In contrast, merely driving a vehicle to the place where a governmental function is to be performed is analogous to an ordinary driving, which would not necessarily involve special risks or a high degree of discretion.

The parties agreed that Ellis was performing the government function of garbage collection on the day of the accident.  However, they disagreed about whether Ellis was using judgment and discretion inherent to the task of garbage collection when he ignored a stop sign. Ellis argued that garbage collection should be viewed as a whole and that the entire process of collecting garbage requires judgment and discretion beyond that of ordinary driving. The trial judge had sided with Ellis, finding evidence showing that he had to make decisions along the route, such as determining how to pick up and empty each individual can and when to empty the truck before continuing.

While the panel agreed with Judge McDonald’s findings with respect to the decisions Ellis generally makes while completing a garbage route, it held that the law required a different outcome.  

“The trial court did not conclude that, at the moment of running the stop sign, Ellis was actually exercising discretion and judgment about what to do with this load,” the panel wrote.

“Nor could the court have reasonably done so, given Ellis's own testimony that between cans he was not doing anything differently than if he was ‘just normally driving down the street’ in his own car and that all he did between stops was ‘look for [his] surroundings and make sure all is clear,’ then ‘get [the] can, dump it, and go to the next one.’ There is also no evidence that Ellis was calculating when or how to pick up the next can, or the total weight of his truck, while ignoring the stop sign.”

As the appeals court viewed the situation, Ellis was operating the garbage truck as a means of transport when the crash occurred. “Unlike a first responder driving in an emergency, where the driving is integral to the function of emergency response itself, the manner of driving the garbage truck was not integrated with the function of collecting trash,” the panel continued.

“Ellis was not engaged in split-second decisions balancing grave personal risks, public safety concerns, and the need to achieve the governmental objective . . . [nor was the truck] at the time of the accident, . . . the means for carrying out the governmental function itself.  He was not actively collecting the trash the way the snowplow driver was using his vehicle to salt a street.”  In short, Ellis was merely driving his truck to the place where he would next perform his garbage collection function – normal driving behavior in routine traffic.

“Ellis's driving between trash cans, during which he ran the stop sign and collided with Jolley's car, was a ministerial act,” the panel concluded. “For this reason, the city and Ellis are not entitled to the protection of sovereign immunity.”

Jolley v. Ellis, No. 0870-23-1, Va. Ct. App., Oct.1, 2024.