Virginia Supreme Court Clarifies Sovereign Immunity for Municipalities and Employees in Ellis v. Jolley
Ellis v. Jolley, Record No. 240930 (Va. Dec. 11, 2025)
Jason Ellis drives a trash truck for the City of Chesapeake, a job requiring a CDL Class B. His daily route involves picking up trash cans from approximately 800 homes. The trash truck differs from ordinary vehicles in that the driver sits on the right side, and it uses air brakes. While driving, Ellis operates a joystick to control a mechanical arm that picks up and dumps trash cans into the truck’s hopper. He must exercise judgment about obstacles, decide whether certain cans can be picked up, and monitor the truck’s capacity. While driving “normally” between trash pickups, Ellis ran a stop sign, causing a collision with Taylor Jolley’s vehicle. Jolley sued both Ellis and the City for personal injuries.
The City filed a plea in bar, asserting that sovereign immunity barred Jolley’s suit against it and Ellis. The circuit court granted the plea, but the Court of Appeals reversed, finding that neither the City nor Ellis were protected by sovereign immunity. Both appealed to the Supreme Court, which reversed the Court of Appeals’ judgment as to the City, but not as to Ellis.
With respect to the City, when a municipality performs a governmental (versus a proprietary) function, it is immune from tort liability for negligence in performing that function. The Supreme Court found that trash removal is a governmental function that promotes public health and comfort, thus the City was immune from suit. The Supreme Court noted that a municipality’s immunity is independent of whether its employee is also immune. Put differently, a municipality’s immunity doesn’t hinge on whether the employee derivatively benefited from immunity.
With respect to Ellis, an employee enjoys immunity based on a four-factor test. A court must examine (1) the nature of the function the employee performs, (2) the extent of the government’s interest and involvement in the function, (3) the degree of control and direction exercised over the employee, and (4) whether the act in question involved the exercise of discretion and judgment. Here, only the fourth factor was at issue, and the Supreme Court found that at the time of the collision, Ellis was engaged in ordinary driving in routine traffic and was not exercising judgment or discretion. It acknowledged that trash truck drivers may at times be protected from sovereign immunity, such as when they are slowing to pick up trash, maneuvering around obstacles, or operating the joystick to pick up cans. But here, Ellis testified that he was driving “normally,” and this constituted ordinary driving not cloaked in immunity.