Builders and Contractors Exchange
Weekly Bulletin: 24 May 2004
The "Government Contractor Defense"
By: Trey Kelleter
Many people may not realize that the government cannot be sued without its permission. It enjoys a "sovereign" immunity from suit except in those classes of cases where it has permitted someone to pursue a claim against it. In general, Virginia and its municipalities still are largely immune from being sued for the allegedly negligent actions of their employees when they perform a governmental function. Many, if not most, public works projects would fit this category.
But how does this extend to contractors who do the government's bidding? What happens when a contractor does work on a bridge or road project for the Virginia Department of Transportation, or helps to build a sewage line for a Virginia county? What if someone says they were physically hurt or had their property damaged because of the contractor's work for the state or county? Can they sue the contractor? Does the contractor enjoy the same immunity that the state or municipality might have had if it had done the work itself?
No statute directly addresses this issue. However, the Virginia Supreme Court has held that a contractor can share the state's immunity from liability when it is engaged in the performance of a public works contract, so long as the contractor was not negligent and performed the public works contract as directed by the state.
For example, in one case a contractor had to make a deep cut through an elevation of rock to help build Interstate 81. The contractor followed the highway department's plans, but his blasting still caused damage to a nearby home. The Court held that the contractor could not be held liable by the homeowner, since the contractor had not been negligent and had acted pursuant to the government contract. In another case, a contractor's work on a tunnel caused cracking in the walls of a nearby office building. The contractor was sued, but could not be held liable for the damage because it had followed the government's specifications while performing its public works contract.
It's not often that someone can enjoy the legal privileges of the government. However, a government contractor can do just that if it carefully abides by the terms of the contract and makes sure that it is not negligent towards others.
Questions?
If you have any questions about this article or any other related matters, please contact:
This article is meant to bring awareness to this topic and is not intended to be used as legal advice.