Garbage Collector Loses Sovereign Immunity Because Accident Happened During Mere “Normal Driving”

Picking up trash is one of those unglamorous but essential government functions that we take for granted right up until a couple pick-ups in a row are missed.  In those moments we all learn just how essential it is that the garbage gets collected when it’s supposed to.

So it’s not surprising that this essential government function should turn out to be a case study in governmental immunity.  If we rely on the government to pick up our garbage, we should expect the government will claim to be immune from lawsuits stemming from that work.  That’s how sovereign immunity is supposed to work. 

Or, at least that’s how an equipment operator in Chesapeake thought it ought to work when he was involved in a serious accident.  To his and the City of Chesapeake’s disappointment, the Virginia Court of Appeals in Jolley v. Ellis ruled otherwise.

The touchstone in Jolley was whether Mr. Ellis, the garbage truck driver, was involved in a “ministerial” function when he got in an accident.  “Ministerial” actions are routine ones that don’t involve an independent exercise of judgment or discretion.  If a government employee injures someone while he’s performing a ministerial action, sovereign immunity doesn’t apply.  The employee is liable for his mistake just like anyone else would be.

But if the employee was exercising governmental discretion or judgment when the accident happened, then the employee is entitled to sovereign immunity and can’t be sued for the injuries he caused.    

Think of the sovereign immunity eligibility analysis as a spectrum of conduct.  On the left end of the spectrum are routine, ordinary activities that don’t require judgment.  On the right end of the spectrum are complex, judgment-laden, discretionary tasks.  The closer you are, as a government official, to the right-hand side of that spectrum, the more likely it is that you’re entitled to sovereign immunity. 

And remember, sovereign immunity is the golden ticket.  With sovereign immunity, it doesn’t matter who got hurt or why.  A lawsuit over the injury will end before it even really gets started.

So, you’re wondering, is driving a garbage truck just a routine ministerial function (no immunity!) or does it involve judgment or discretion (congratulations, immunity!)?

Well, it’s not such an easy question.  On the one hand, the Court in Jolley reasoned, when Mr. Ellis was actually stopped at a house picking up trash, and deciding whether to get out and pick it up by hand, or whether to use the big claw that lifts up trash cans, or when he was considering how much the trash he’d picked up weighed, or how much capacity was in the back of the truck, those were questions involving judgment or discretion.  So, if the accident had happened while Mr. Ellis was doing that work, he would have enjoyed sovereign immunity.

But the accident didn’t happen while Mr. Ellis was picking up garbage.  Instead, it happened when he “rolled through” a stop sign driving from one trash pick-up to another.  According to Mr. Ellis, during this part of his route, he was “’just normally driving down the street’ [as if he was] in his own car.” 

In light of that sort of driving, the Court concluded that Mr. Ellis wasn’t exercising governmental discretion or judgment at the time of the accident.  He was just engaged in ordinary, ministerial driving.  So, no sovereign immunity for Mr. Ellis and the City of Chesapeake.

It's worth noting, though, that the Court rightly characterized this case as difficult. And, it's a good illustration of how difficult it can be to sort out what kinds of activity will enjoy sovereign immunity and what kinds are left to the tender mercies of ordinary civil litigation. The Court ruled that Mr. Ellis, whose garbage truck can hold 400-500 cans of garbage and uses a claw to pick up cans, wasn’t exercising any discretion "at the moment of the accident," other than driving safely.  Plus, the Court reasoned, when Mr. Ellis was driving between houses, he wasn’t really picking up trash (the governmental function).  He was just using his garbage truck for transportation to get to the actual governmental function which was picking up trash. 

But garbage trucks are huge and, from the perspective of a driver whose car is much smaller, there doesn’t seem very much routine about operating one safely.  And while it’s true that picking up trash is different from driving to pick up trash, when it comes to garbage trucks, getting from house to house to get the trash is the process that makes the governmental function possible in the first place.  After all, a garbage truck that picks up my neighbor’s trash and then stops before it gets to my house isn’t helping me very much.

In ruling that driving a garbage truck from house to house wasn’t part of a governmental function, the Court distinguished the case from an earlier Supreme Court of Virginia case that held that driving kids in a school bus from their homes to school was a governmental function.  The Jolley Court explained that driving a school bus loaded with kids requires particular discretion and considerations of safety: “any parent or anyone who has ever been inside a school bus would understand the vigilance required by the driver.” 

It’s easy to see why courts would give more credence to the safety needs of transporting young kids than to collecting old trash.  Still, big school busses and big garbage trucks both have to navigate on narrow streets and the risks of accidents and mistakes don’t seem, at first blush, very much different.

The point here isn’t that the Court of Appeals got this ruling wrong. It sounds plausible enough. It is true that the Court closely parsed whether Mr. Ellis was engaged in a governmental function at the time of his accident. But it's also true that the Court emphasized that “we do not suggest that sovereign immunity starts and stops with every house along a garbage route—in Ellis’s case, about 800 stops a day.”

The point is that when governments take on tasks, and government employees sign up to do those tasks, it can be difficult to know in advance whether sovereign immunity will apply if something goes wrong.  That uncertainty has implications for, among other things, how governments arrange for insurance or choose in the first instance what activities to undertake on behalf of their citizens.  It also has implications for deciding how to prosecute and defend claims against the government. 

For everyone involved, from the people driving big trucks, to the people surveying the inevitable accident scenes, to the lawyers figuring out how to make things right afterwards, the usual advice is still the best: be careful out there.

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