PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee, 

JJ., and Carrico, S.J. 

ROBERT I. JONES, SR. 

 OPINION BY 

v. Record No. 030310 JUSTICE DONALD W. LEMONS 

 JANUARY 16, 2004 

COMMONWEALTH OF VIRGINIA, ET AL. 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

PAUL M. PEATROSS, JR., Judge 

 In this appeal, we consider whether the University of 

Virginia (“the University”) is a governmental entity for the 

purposes of determining its status as a statutory employer under 

the Virginia Workers’ Compensation Act (“the Act”), Code 

§§ 65.2-100 to –1310. 

I. Facts and Proceedings Below 

 Robert I. Jones, Sr. (“Jones”) was employed by Waco, Inc. 

(“Waco”), an independent contractor employed by the University 

to perform asbestos abatement in a building on the grounds. 

Part of this work included the removal of electrical conduits. 

Jones received an electrical shock while attempting to remove an 

electrical conduit. 

 Jones filed a motion for judgment against the University 

and its employees alleging that they had negligently informed 

him that the electrical power to that conduit had been turned 

off when the conduit actually contained live wires. The 

defendants each filed pleas in bar based on the Act. The 

Commonwealth of Virginia, on behalf of the University, and the 
individual defendants asserted that the University was the 

statutory employer of Jones because it is a governmental entity 

with a statutory mandate to maintain its buildings and Jones was 

engaged in the maintenance of a University building. 

 The trial court sustained the defendants’ pleas in bar, 

dismissing Jones’s action, and denied Jones’s motion to 

reconsider on November 20, 2002. Jones appeals the adverse 

judgment of the trial court. 

II. Analysis 

 Jones asserts that the trial court erred by holding that 

the University is a governmental entity and that its trade or 

business included asbestos removal from buildings under its care 

and control. Further, Jones argues that the trial court erred 

in applying the exclusivity provision of the Workers’ 

Compensation Act despite the language of the Virginia Tort 

Claims Act stating that “the Commonwealth shall be liable . . . 

where the Commonwealth . . ., if a private person, would be 

liable . . . .” Code § 8.01-195.3. 

 The Virginia Workers’ Compensation Act provides that: 

When any person (referred to in this section as 

“owner”) undertakes to perform or execute any 

work which is a part of his trade, business or 

occupation and contracts with any other person 

(referred to in this section as “subcontractor”) 

for the execution or performance by or under such 

subcontractor of the whole or any part of the 

work undertaken by such owner, the owner shall be 

liable to pay to any worker employed in the work 

2
any compensation under this title which he would 

have been liable to pay if the worker had been 

immediately employed by him. 

Code § 65.2-302(A). This “statutory employer” provision is 

designed to ensure that owners do not escape liability for 

workers’ compensation benefits by having their work performed by 

others. Henderson v. Central Tel. Co., 233 Va. 377, 381, 355 

S.E.2d 596, 598-99 (1987); Smith v. Horn, 232 Va. 302, 305-06, 

351 S.E.2d 14, 16 (1986). 

 In this case, the University was the owner of the building 

on which Jones was working when he was injured. Once an owner 

is found to be a statutory employer, it is subject to all the 

mandates, duties, and rights as to its statutory employee 

mandated by the Act, including the “exclusivity rule.” The 

exclusivity rule provides that when an employee is eligible for 

remedy under the Act, he or she may not seek any other remedy 

against the employer or his fellow employees. See Code § 65.2-

307(A). 

As discussed below, the analysis of the liability as an 

owner for governmental entities and private entities differs. 

In other words, state agencies, municipalities, and counties are 

treated differently from private corporations and individuals. 

Jones argues that we have never extended governmental entity 

status to a college or university under the Act. However, both 

3
statutory language and case law indicate that the University is 

entitled to governmental entity status. 

The most obvious difference between a governmental entity 

and a private entity is that the control of a governmental 

entity ultimately lies with publicly elected officials. Code 

§ 23-69 establishes the Board of Visitors of the University as a 

public corporation that is “at all times subject to the control 

of the General Assembly.” It would challenge reason to suggest 

that an institution, subject at all times to the control of the 

legislature, is not a governmental entity. 

In Phillips v. Rector and Visitors of Univ. of Va., 97 Va. 

472, 474, 34 S.E. 66, 67 (1899), we held that buildings owned by 

the University could not be subject to mechanic’s liens because 

the University’s buildings were protected by the general rule 

that mechanic’s liens “do not, in the absence of express 

provisions, apply to public buildings erected by States, 

counties, and towns for public uses.” In determining “the 

nature of the University of Virginia,” we noted that “the 

University, from its foundation, has been wholly governed, 

managed, and controlled by the State . . . and private 

individuals have no interest in or control over it.” Id. at 

475, 34 S.E. at 67. We pointed to language nearly identical to 

that in the current Code “provid[ing] that the Rector and 

4
Visitors should be at all times subject to the control of the 

General Assembly.” Id. We concluded that the University’s 

property should be treated like the property of a state, county, 

or town because 

the University . . . is in the strictest sense a 

public institution, and that its grounds and 

buildings are public property, the property of 

the State; that it is governed and controlled 

solely by the State; that its grounds and 

buildings are wholly dedicated to public uses; 

and that the interest of the public constitutes 

its ends and aims. 

Id. at 475-76, 34 S.E. at 67. 

The reasoning that led to our holding in Phillips applies 

here with equal force. The characteristics of the University 

informing our decision in that case are the same here. Although 

we did not use the specific term “governmental entity” in 

Phillips, certainly an entity that is established by statute, is 

governed and controlled solely by the General Assembly, owns 

property through money appropriated by the General Assembly, and 

whose very essence is public use and service is a governmental 

entity, is to be treated in the same manner as municipalities 

for the purposes of the Act.

 In a situation in which an employee of an independent 

contractor sues a private entity that owns a project, we have 

applied the “normal work test” to determine whether the injured 

party was engaged in the trade, business, or occupation of the 

5
owner at the time of his or her injury. See Bassett Furniture 

Indus., Inc. v. McReynolds, 216 Va. 897, 902-03, 224 S.E.2d 323, 

326-27 (1976); Johnson v. Jefferson Nat’l Bank, 244 Va. 482, 

485, 422 S.E.2d 778, 780 (1992). However, the normal work test 

does not apply to the determination of the trade, business, or 

occupation of a governmental entity. 

 In Nichols v. VVKR, Inc., 241 Va. 516, 403 S.E.2d 698 

(1991), we held: 

A governmental entity or a public utility 

does not share the ability to choose its 

activities. Therefore, if the project’s 

owner is a governmental agency or a public 

utility, any activity which the owner is 

authorized or required to do by law or 

otherwise, is considered the trade, 

business, or occupation of the owner. 

Id. at 521, 403 S.E.2d at 701. See Henderson, 233 Va. at 383-

85, 355 S.E.2d at 599-601; Ford v. City of Richmond, 239 Va. 

664, 667, 669, 391 S.E.2d 270, 271-73 (1990). The unique nature 

of a governmental entity requires examination of statutory 

authorization and mandated duties to determine the entity’s 

trade, business, or occupation. What the legislature has 

authorized or required an entity to do is the trade, business, 

or occupation of the entity, whatever the frequency with which 

6
the task is performed or the number of employees directly 

employed to perform the task.*

 Jones relies on Board of Supervisors v. Boaz, 176 Va. 126, 

10 S.E.2d 498 (1940), to support his argument that the 

University was not his statutory employer because building 

repair is not the University’s trade, business, or occupation. 

Boaz, however, is inapplicable. The opinion in Boaz was based 

largely on the fact that the Act at that time did not include 

the Commonwealth and its political subdivisions in its 

provisions. Id. at 130, 10 S.E.2d at 499. The Act has long 

 *

 We have held cities, a ferry district, and a turnpike 

authority to be governmental entities whose trade, business, or 

occupation is defined by statute, irrespective of the number of 

the entity’s own employees engaged in the work that resulted in 

injury to a contractor’s employee. See Ford v. City of 

Richmond, 239 Va. 664, 669, 391 S.E.2d 270, 273 (1990) (holding 

that the city of Richmond was the statutory employer of the 

employee of a contractor hired to repair the roof on a water 

reservoir); Roberts v. City of Alexandria, 246 Va. 17, 19-20, 

431 S.E.2d 275, 276-77 (1993) (holding that the City of 

Alexandria was the statutory employer of an employee of a 

medical services provider contracted to provide medical services 

at the city jail); Williams v. E.T. Gresham Co., 201 Va. 457, 

464-65, 111 S.E.2d 498, 503-04 (1959) (holding that the 

Chesapeake Bay Ferry District was the statutory employer of the 

employees of a contractor hired to drive piles for a ferry 

landing even though Ferry District employees had never driven 

piles on their own); Anderson v. Thorington Construction Co., 

201 Va. 266, 271-72, 110 S.E.2d 396, 400-01 (1959) (holding that 

a turnpike authority was the statutory employer of the employee 

of an engineering firm contracted to consult on the construction 

on a portion of the turnpike despite the fact that the Authority 

did not directly employ any individuals engaged in constructionrelated work). The statutory language on which these decisions 

have been based has not been materially altered and the 

reasoning in these cases is instructive here. 

7
since been amended to specifically include the Commonwealth and 

its subdivisions. We have previously noted that Boaz is no 

longer applicable law. See Ford at 668-69, 391 S.E.2d at 272-

73. 

 The University is a governmental entity. Its powers and 

duties, exercised by the Rector and Visitors of the University, 

are created by statute and are controlled by the General 

Assembly. Code §§ 23-62 to –91.23:1. Applying the rule 

established in Nichols, any activity of the University 

authorized or required by statute is the trade, business, or 

occupation of the University for purposes of the Act. Pursuant 

to Code § 23-76, the University’s Board of Visitors “shall be 

charged with the care and preservation of all property belonging 

to the University.” Accordingly, the care and preservation of 

the University’s buildings is part of the trade, business, or 

occupation of the University. The asbestos abatement performed 

by Jones and Waco was part of the maintenance of the 

University’s buildings; therefore, Jones was involved in the 

trade, business, or occupation of the University at the time of 

his injury. The University was his statutory employer; 

consequently, Jones is barred from seeking a remedy in tort 

against the University and its employees. 

 Additionally, Jones argues that the Virginia Tort Claims 

Act, Code §§ 8.01-195.1 to –195.9, requires the court to treat a 

8
governmental entity as though it were a private person under the 

Workers’ Compensation Act. We disagree. The Tort Claims Act is 

a waiver of the state’s sovereign immunity in certain 

circumstances allowing the imposition of liability equivalent to 

that of a private entity. Id. Because the Tort Claims Act is a 

statute in derogation of the common law, its limited waiver of 

immunity must be strictly construed. See Baumgardner v. 

Southwestern Va. Mental Health Inst., 247 Va. 486, 489, 442 

S.E.2d 400, 402 (1994); Hyman v. Glover, 232 Va. 140, 143, 348 

S.E.2d 269, 271 (1986); Norfolk & W. Ry. v. Virginian Ry., 110 

Va. 631, 646, 66 S.E. 863, 868 (1910). The Tort Claims Act does 

not waive other jurisdictional bars or defenses available to the 

Commonwealth and its agencies. Code § 8.01-195.3. The 

exclusivity bar under the Workers’ Compensation Act is a 

jurisdictional bar independent of the doctrine of sovereign 

immunity, applying to private and governmental entities in like 

manner. 

 For the reasons stated, we hold that Jones is a statutory 

employee of the University of Virginia and is barred by the 

workers’ compensation exclusivity rule from pursuing his tort 

claim against the University and its employees. The trial court 

did not err in granting the defendants’ pleas in bar and we will 

affirm its judgment. 

Affirmed.

9