PRESENT: All the Justices

VIOLET SEABOLT

 OPINION BY 

v. Record No. 110733 JUSTICE WILLIAM C. MIMS

 April 20, 2012

COUNTY OF ALBEMARLE

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Cheryl V. Higgins, Judge

In this appeal, we consider whether the circuit court had 

subject matter jurisdiction to adjudicate a tort claim against 

Albemarle County.

Violet Seabolt filed a complaint against Albemarle County 

alleging that she was injured as a result of the county’s gross 

negligence in maintaining a public park. The county filed 

defensive pleadings, including a demurrer to gross negligence 

and a special plea of sovereign immunity. The circuit court 

heard argument on the county’s pleadings and sustained the 

demurrer as to gross negligence. The circuit court declined to 

rule on the county’s special plea of sovereign immunity.

On appeal, Seabolt argues that the circuit court erred in 

sustaining the county’s demurrer as to gross negligence. The 

county did not assign cross-error to the circuit court’s 

decision not to rule on the issue of sovereign immunity. 

Nonetheless, the county argues, inter alia, that the circuit 

court lacked jurisdiction to hear the suit because the county is 

immune in tort.
2

We will first consider the county’s claim of sovereign 

immunity because it is jurisdictional. Afzall v. Commonwealth, 

273 Va. 226, 230, 639 S.E.2d 279, 281 (2007). In Afzall, we 

considered the Commonwealth’s argument of sovereign immunity, 

made for the first time on appeal, because “if sovereign 

immunity applies, the court is without subject matter 

jurisdiction to adjudicate the claim.” Id.

“At common law, the Commonwealth was immune from liability 

for torts committed by its officers, employees and agents. . . . 

[T]hat immunity continues to apply in the absence of a 

legislative waiver by which the Commonwealth consents to be sued 

in its own courts.” Doud v. Commonwealth, 282 Va. 317, 320, 717 

S.E.2d 124, 125 (2011) (citations omitted). Counties, as 

political subdivisions of the Commonwealth, enjoy the same tort 

immunity as does the sovereign. Mann v. County Bd. of Arlington 

County, 199 Va. 169, 175, 98 S.E.2d 515, 519 (1957); Fry v. 

County of Albemarle, 86 Va. 195, 197-99, 9 S.E. 1004, 1005-06 

(1890). Consequently, “a county cannot be sued unless and until 

that right and liability be conferred by law.” Mann, 199 Va. at 

174, 98 S.E.2d at 518-19.

In Doud, we recognized that with the enactment of the 

Virginia Tort Claims Act (“VTCA”), “the Commonwealth has waived 

its sovereign immunity for tort claims in the circumstances to 

which the statute applies, but the waiver is a limited one.” 
3

282 Va. at 320, 717 S.E.2d at 125. However, the Virginia Tort 

Claims Act, by its express terms, excludes counties from its 

limited abrogation of immunity. Code § 8.01-195.3 (“nor shall 

any provision of this article be applicable to any county, city 

or town in the Commonwealth or be so construed as to remove or 

in any way diminish the sovereign immunity of any county, city 

or town in the Commonwealth”).

Seabolt thus relies on a different statute as the basis for 

asserting a legislative waiver of the county’s sovereign 

immunity. She argues that pursuant to Code § 15.2-1809, a 

county operating a park, recreational facility, or playground is 

“liable in damages for the gross negligence of any of its 

officers or agents in the maintenance or operation of any such 

park, recreational facility or playground.”1

 Code § 15.2-1809. 

The county responds that this statute does not waive the 

sovereign immunity of counties, but only of cities and towns. 

We agree with the county. 

Code § 15.2-1809 states:

No city or town which operates any park, 

recreational facility or playground shall be 

liable in any civil action or proceeding for 

damages resulting from any injury to the person 

or from a loss of or damage to the property of 

any person caused by any act or omission 

constituting ordinary negligence on the part of 

any officer or agent of such city or town in the 

 1 We note that Seabolt has named only Albemarle County and 

not one or more of its officers or agents in this action.
4

maintenance or operation of any such park, 

recreational facility or playground. Every such 

city or town shall, however, be liable in damages 

for the gross negligence of any of its officers 

or agents in the maintenance or operation of any 

such park, recreational facility or playground.

The immunity created by this section is 

hereby conferred upon counties in addition to, 

and not limiting on, other immunity existing at 

common law or by statute.

(Emphasis added.) In determining whether Code § 15.2-1809 

allows counties to be sued for the alleged gross negligence of

unnamed officers or agents, “[w]e look to the plain meaning of 

the statutory language, and presume that the legislature chose, 

with care, the words it used when it enacted the relevant 

statute.” Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 

402, 404 (2011) (internal citations and quotation marks 

omitted). Furthermore, we recognize that “[a] waiver of 

immunity cannot be implied from general statutory language but 

must be explicitly and expressly announced in the statute.” 

Afzall, 273 Va. at 230, 639 S.E.2d at 281 (internal quotation 

marks omitted).

The plain meaning of the statute is clear. In a suit for 

damages arising out of the operation or maintenance of a public 

park, recreational facility, or playground, a city or town is 

not liable for its agents’ and employees’ acts of ordinary 

negligence, but is liable for gross negligence of the same 

officers or agents. The second paragraph of the statute confers 
5

the immunity created in the first paragraph for cities and towns 

onto counties “in addition to” the immunity counties already 

enjoy. Code § 15.2-1809 does not in any way abrogate the 

sovereign immunity of counties. This holding is consistent with 

our conclusion in Frazier v. City of Norfolk, 234 Va. 388, 362 

S.E.2d 688 (1987), that by enacting the statute, “the General 

Assembly intended to limit the civil liability of 

municipalities,” i.e. only cities and towns, “in the maintenance 

and operation of any recreational facilities to cases of gross 

or wanton negligence.” Id. at 391, 362 S.E.2d at 690 (emphasis 

added).

The county next argues that the circuit court lacked 

subject matter jurisdiction because Seabolt did not allege 

compliance with the presentment and appeal procedures set forth 

in Code §§ 15.2-1243 et seq. According to the county, these 

statutes provide the “mandatory and exclusive mode for bringing 

any claim against a county in the Commonwealth.” In the 

apparent view of the county, the claims permitted pursuant to 

Code §§ 15.2-1243 et seq. include tort claims. Because we 

consistently have held that the statutes do not apply to tort 

claims, we do not need to reach the procedural compliance 

question.

In both Fry and Mann, we interpreted the antecedents to the 

present statutes and held that they did not abrogate the 
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sovereign immunity of counties in tort. Rather, they only 

allowed counties to sue and be sued in contract, subject to 

certain procedural requirements.

In Fry, this Court interpreted former section 13 of chapter 

45 of the Code of 1873, which read: “Counties may sue in their 

own names for forfeitures, fines, or penalties given by law to 

such counties, or upon contracts made with them, and may be sued 

in their own names, in the circuit court of such county.” We

held that “[t]he legislature has given a remedy in cases growing 

out of contracts with counties, but it has given no remedy 

against a county for the negligence of a public officer or 

servant appointed by law.” 86 Va. at 197, 9 S.E.2d at 1005.

In Mann, we interpreted a nearly identical version of that

statute, former Code § 15-3, and held: “Virginia has enacted 

legislation allowing counties to sue and be sued upon 

contractual obligations (§ 15-3, Code 1950), yet we find no 

legislation allowing it to be sued for tortious personal 

injuries.” 199 Va. at 174, 98 S.E.2d at 519.2

 Today we do not 

 2 Notably, at the time of the Mann decision, the Code of 

1950 included several statutes relating to claims against 

counties which the Court clearly did not view as applying to 

tort claims. See, e.g., former Code §§ 15-253 (“Audit and 

allowance of claims against counties”); 15-256 (“Limitations on 

issuance of warrants”); 15-257 (“Allowance of claims; 

procedure”); 15-259 (“Appeal from disallowance of claim”); 15-

260 (“When disallowance of claim final; exception; when no 

execution to be issued.”); 15-261 (“No action allowed against 

county until, etc.”). Those statutes are the predecessors to 
7

disturb that holding. There is no indication that the General 

Assembly, in its recodification and amendments subsequent to 

Mann, intended to abrogate counties’ immunity in tort. See

Afzall, 273 Va. at 230, 639 S.E.2d at 281 (waiver of immunity 

cannot be implied from general statutory language but must be 

explicitly and expressly announced in the statute).

We hold that the “claims” that may be recovered under Code 

§§ 15.2-1243 et seq. do not include those based in tort. In the 

absence of a legislative waiver of immunity, the circuit court 

was without jurisdiction to adjudicate Seabolt’s tort claim 

against the county. See Afzall, 273 Va. at 230, 639 S.E.2d at 

281. The circuit court should have granted the county’s special 

plea of sovereign immunity. The court had no jurisdiction to 

decide the case on any other basis. Consequently, we will 

affirm the circuit court’s dismissal of Seabolt’s complaint.

Affirmed.

 

the current statutory scheme set forth in Code §§ 15.2-1243 et 

seq. and are substantially identical to the provisions at issue 

in this case. See Code §§ 15.2-1243 (“Governing body to 

receive, audit and approve claims; warrants”); 15.2-1244 

(“Limitations on issuance of warrants”); 15.2-1245 (“Procedure 

for allowance of claims”); 15.2-1246 (“Appeal from disallowance 

of claim”); 15.2-1247 (“When disallowance of claim final; 

exception; when no execution to be issued.”); 15.2-1248 (“No 

action against county until claim presented to governing 

body.”).