Client Alert: Virginia Supreme Court Clarifies Sovereign Immunity – Whiteford Secures Win in Ellis v. Jolley
Date: January 30, 2026
- In a victory for Whiteford’s Appellate Practice, the Supreme Court of Virginia clarified the scope of the sovereign immunity doctrine.
- The case involved a municipal trash truck driver and whether he could be liable for negligence while on his route.
- The Circuit Court ruled the driver was immune, but the Supreme Court disagreed.
- The Court focused on whether the driver was exercising judgment and discretion beyond ordinary driving at the time of the accident.
- The decision provides guidance for negligence cases involving municipal employees and vehicle operation.
- The decision was a significant win for Whiteford’s client, allowing her to seek relief for her injuries.
On December 11, 2025, Whiteford’s Appellate Practice Co-Chairs, Michael Brady and Thomas DiStanislao, secured a decisive victory from the Supreme Court of Virginia in a decision clarifying the scope of the sovereign immunity doctrine in the Commonwealth.
The case presented a straightforward, yet nuanced question: Can a municipal trash truck driver on his route—and so performing a governmental function—be liable for his negligent acts when not actively collecting garbage? The Circuit Court said no, determining he was immune from liability by virtue of the fact he was on his assigned route, although he was at a stop sign.
In a unanimous decision, the Supreme Court of Virginia disagreed, holding the trash truck driver was not entitled to sovereign immunity. In doing so, the Court adopted the reasoning urged by Mr. Brady and Mr. DiStanislao. Rejecting the reasoning adopted by the Circuit Court and urged by the municipality, the Court focused on whether the employee was exercising judgment and discretion beyond ordinary driving at the time of the accident. To that end, the trash truck driver admitted he was engaged in “normal driving”—i.e., not performing tasks requiring special judgment, such as maneuvering around obstacles or operating the truck’s trash collection mechanisms—when he failed to stop and plowed into the plaintiff. As a result, the Court held that the employee could not claim the benefit of sovereign immunity, despite being on his route to the next can.
At the same time, the Court also emphasized the role that record evidence beyond the express reasoning in earlier decisions can have in its analysis. In illustrating the distinction between routine and discretionary driving, the Court distinguished Linhart v. Lawson. There, the Court held that a school bus driver was entitled to sovereign immunity because the driver was engaged in the discretionary act of transporting school children. The municipality had claimed that because its driver was transporting trash, Linhart required that sovereign immunity apply. In rejecting that position, the Ellis Court seized on the fact that Linhart involved no mere transportation, but the transportation of special needs students—facts of record in Linhart, identified by Mr. Brady and Mr. DiStanislao in their briefing but not referenced in the Linhart opinion—and so involved discretion and judgment. In Ellis, the city employee testified to no such discretionary tasks at the time of the accident.
The Supreme Court of Virginia’s decision in Ellis v. Jolley provides important guidance for those suing municipalities and their employees for negligence, especially in cases involving the operation of vehicles. It also highlights the need for careful and thorough analysis by experienced appellate counsel in framing arguments to the Court. And it affords a significant win to Whiteford’s client, who will now get an opportunity to seek relief for her injuries.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.