Robertson v. Western Va. Water Auth. ( 2014 )

PRESENT: All the Justices
THOMAS L. ROBERTSON
OPINION BY
v. Record No. 130416 JUSTICE CLEO E. POWELL
January 10, 2014
WESTERN VIRGINIA WATER AUTHORITY
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
Thomas L. Robertson (“Robertson”) appeals the judgment of
the trial court that the doctrine of sovereign immunity applies
to bar tort claims against a municipal corporation for the
maintenance and operation of a sanitary sewer system. Having
determined that the maintenance and operation of a sanitary
sewer system is a proprietary function, we will reverse the
judgment of the trial court.
I. BACKGROUND
In late June of 2006, a 12-inch diameter terracotta sewer
line burst on real property owned by Robertson. The flow from
the broken sewer line caused a partial collapse of a 10-foot
high retaining wall running along the rear of the property. As
a result, Robertson suffered extensive damage to his property.
Robertson filed a complaint against the owner of the sewer
pipe, the Western Virginia Water Authority (the “Authority”).
In his complaint, Robertson alleged that the Authority was
negligent in its maintenance and operation of the sewer line.
In its answer, the Authority admitted that it owned and
maintained the sewer line, but denied negligence.
Prior to trial, the Authority moved for summary judgment on
the basis that operating and maintaining the sewer line is a
governmental function and, therefore, as a municipal
corporation, the doctrine of sovereign immunity precluded
liability. After hearing argument by the parties, the trial
court determined that “the maintenance and operation in all
respects of a sanitary sewer system is a governmental public
safety function and that governmental immunity applies to the
[Authority].” The trial court granted the Authority’s motion
for summary judgment.
Robertson appeals.
II. ANALYSIS
In his appeal, Robertson argues that the maintenance and
operation of a municipal sewer system is a proprietary function
and, therefore, the Authority is not entitled to sovereign
immunity.
“A plea of sovereign immunity presents distinct issues of
fact that, if proved, create a bar to a party's alleged right of
recovery. The party advancing the sovereign immunity plea bears
the burden of proving those issues of fact.” Gambrell v. City
of Norfolk, 267 Va. 353, 357, 593 S.E.2d 246, 249 (2004)
(citations omitted).
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In Virginia, municipal corporations exercise
two types of functions, governmental and
proprietary. A function is governmental in
nature if it is directly related to the
general health, safety, and welfare of the
citizens. In contrast, a function is
proprietary in nature if it involves a
privilege and power performed primarily for
the benefit of the municipality. As a
general rule, when an allegedly negligent
act involves the routine maintenance or
operation of a service being provided by a
municipality, the function is considered to
be a proprietary one.
A municipality is immune from liability for
negligence in the exercise of a governmental
function, as well as for negligence in the
failure to exercise a governmental function.
However, a municipality is liable, in the
same manner as an individual or a private
entity, for injuries resulting from
negligence in the performance of proprietary
functions.
Id. at 357-58, 593 S.E.2d at 249 (citations omitted). See also
City of Chesapeake v. Cunningham, 268 Va. 624, 633-35, 604
S.E.2d 420, 426-27 (2004).
It is well established that “when a municipality plans,
designs, regulates or provides a service for the common good, it
performs a governmental function.” City of Chesapeake, 268 Va.
at 634, 604 S.E.2d at 426. Thus, if the issue was negligence in
the plan or design of the sewer system, the Authority would be
immune from liability. Id.
“In contrast, routine maintenance or operation of a
municipal service is proprietary.” Id. at 634, 604 S.E.2d at
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427. This Court has recognized that “a municipal corporation
may be held liable, as a private person might be, for negligence
in the exercise of its proprietary functions.” Woods v. Town of
Marion, 245 Va. 44, 45, 425 S.E.2d 487, 488 (1993). Indeed,
with regard to sanitary sewer systems, this Court has
specifically recognized that “‘the obligation to establish and
open sewers is a legislative duty, while the obligation to keep
them in repair is ministerial.’” Chalkley v. City of Richmond,
88 Va. 402, 408, 14 S.E. 339, 341 (1891) (quoting Ashley v. Port
Huron, 35 Mich. 296, 300 (1877) (emphasis omitted). “‘There is
a municipal liability where the property of private persons is
flooded, either directly or by water being set back, when this
is the result of . . . the negligent failure to keep [sewers] in
repair and free from obstructions.’” Id. (quoting John F.
Dillon, Commentaries on the law of Municipal Corporations § 1051
(4th ed. 1890)); see also City of Chesapeake, 268 Va. at 635,
604 S.E.2d at 427 (2004) (citing Chalkley for the notion that
routine maintenance of a sanitary sewer is proprietary).
Applying these principles to the present case, we hold that
the trial court erred in holding that the Authority was entitled
to sovereign immunity.
III. CONCLUSION
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For the foregoing reasons, the judgment of the trial court
will be reversed and we will remand the case for further
proceedings consistent with this opinion.
Reversed and remanded.
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