Michael Canter v. Commonwealth of Virginia ( 2024 )

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Athey, Callins and Frucci
Argued at Salem, Virginia
MICHAEL CANTER
v. Record No. 1779-23-3
COMMONWEALTH OF VIRGINIA OPINION BY
JUDGE CLIFFORD L. ATHEY, JR.
JT’S HAULING, LLC NOVEMBER 19, 2024
v. Record No. 1780-23-3
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SMYTH COUNTY
Deanis L. Simmons, Judge
Payton R. Johnson (Celeratus Legal, PLC, on brief), for appellants.
Sheri H. Kelly, Assistant Attorney General (Jason S. Miyares,
Attorney General; Steven G. Popps, Deputy Attorney General;
Jacqueline C. Hedblom, Senior Assistant Attorney General, on brief),
for appellee.
On September 11, 2023, the Circuit Court of Smyth County (“circuit court”) sustained pleas
in bar filed by the Commonwealth of Virginia (“Commonwealth”) alleging sovereign immunity and
dismissed the Virginia Tort Claims Act (“VTCA”) claim filed by Michael Canter (“Canter”), owner
and employee of JT’s Hauling, LLC (“JT’s Hauling”) (collectively “appellants”). Appellants
claimed personal injury resulting from a motor vehicle accident on a portion of Interstate 81 in
Smyth County caused by the alleged gross negligence of VDOT for failing to safely maintain that
portion of the highway. On appeal, appellants argue that the circuit court erred by 1) sustaining
successive pleas in bar to both their original complaints as well as their amended complaints and
2) by not permitting further amendment of their complaints introducing the applicability of
Commonwealth v. Muhwahhid, 77 Va. App. 821 (2023), in support of their cause of action. For the
following reasons, we affirm.
I. BACKGROUND1
On November 12, 2020, Canter was operating a 2019 Peterbilt tractor and 2017 East
Tandem flatbed trailer, both of which were titled to JT’s Hauling, while traveling on Interstate 81
North in Smyth County. Around mile marker 34, Canter encountered a pool of water in the
“left-hand” lane of the roadway that was only demarcated by “orange and white barrels” placed
by the median. While crossing the water, Canter’s tractor trailer veered left into the road’s
median and overturned. As a result, Canter sustained various injuries and the tractor trailer
owned by JT’s Hauling sustained significant property damage.
On October 31, 2022, appellants filed complaints pursuant to the VTCA alleging “gross
negligence” by the Commonwealth and the Virginia Department of Transportation (VDOT)2 for
causing the dangerous water pooling at mile marker 34 of Interstate 81 that led to the motor
vehicle accident. Appellants further asserted that the Commonwealth and VDOT “had notice of
the problem at mile marker 34 in the North bound [sic] [lane] of Interstate 81 dating back to at
least 2013.” They also contended that “[t]here [we]re multiple reports of accidents at this
location on social media and other sources” for several years. Finally, they alleged that even
though the Commonwealth and VDOT were on notice, they still failed to remedy the dangerous
condition. Hence, appellants claimed that the Commonwealth and VDOT’s “failure to repair this
1
As the circuit court did not take evidence in support of the plea in bar, we review its
decision with “the facts stated in the plaintiff’s [complaint] . . . deemed true.” Massenburg v.
City of Petersburg, 298 Va. 212, 216 (2019) (quoting Lostrangio v. Laingford, 261 Va. 495, 497
(2001)).
2
VDOT is not a party to this appeal.
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roadway after so many accidents reflects a total disregard for the health and safety of the
motorist[s]” using the highway.
On November 17, 2022, the Commonwealth and VDOT filed pleas in bar asserting that
appellants’ claims were barred by sovereign immunity. The circuit court conducted a hearing on
the pleas in bar on January 17, 2023. On January 24, 2023, the circuit court sustained the pleas
in bar to the original complaints, dismissing the claims against VDOT with prejudice and the
claims against the Commonwealth without prejudice.
On February 7, 2023, appellants filed amended complaints against the Commonwealth.
In the amended complaints, appellants again alleged that the Commonwealth was aware of the
dangerous condition for several years. However, in the amended complaints, appellants further
contended that the Commonwealth, “acting through its agents, employees and representatives of
[VDOT],” “had a duty to maintain Interstate 81 and keep it in a condition that is safe for the
motorists using the roadway” and “knew or should have known that water accumulated on this
lane of Interstate 81 North at mile marker 34 when it rained and failed to place a warning on the
roadway approaching the location of the dangerous condition.” The amended complaints further
alleged that the only steps taken by the Commonwealth to remedy the problem “was the placing
of orange and white safety barrels in the median.” On February 16, 2023, the Commonwealth
responded to the amended complaints by filing second pleas in bar to the amended complaints on
the grounds that appellants’ claims were once again barred by sovereign immunity.
On June 6, 2023, the circuit court conducted a hearing on the Commonwealth’s second
pleas in bar.3 On August 4, 2023, appellants filed a letter in the circuit court referencing this
Court’s opinion in Commonwealth v. Muwahhid, 77 Va. App. 821 (2023), and contending that
the opinion “support[ed]” their arguments in opposition to the pleas in bar. Four days later, the
3
No transcript for this hearing was filed with this Court.
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Commonwealth responded by asserting in its own letter that “Muwahhid fully support[ed]” the
Commonwealth’s pleas in bar as “the Commonwealth [in that case] did not assert VTCA
legislative function immunity below, [but] the Court of Appeals [in that case] recognized this
doctrine’s continuing vitality.”
On August 16, 2023, the circuit court issued a letter opinion sustaining the demurrers and
pleas in bar and dismissing appellants’ claims with prejudice after considering “the arguments of
counsel in conjunction with the aforesaid letters of [appellants and the Commonwealth], and the
caselaw submitted.” The circuit court then entered a final order on September 11, 2023,
dismissing appellants’ claims, consistent with the court’s letter opinion. Appellants appealed.
II. ANALYSIS
A. Standard of Review
“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s
recovery.” Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Hawthorne v.
VanMarter, 279 Va. 566, 577 (2010)). “Two possible standards of review apply, depending on
whether the plea’s proponent elects to meet [its] burden by presenting evidence or [by] relying
on the pleadings.” Id. “In the latter situation, ‘where no evidence is taken in support of a plea in
bar, the trial court, and the appellate court upon review, consider solely the pleadings in
resolving the issue presented. In doing so, the facts stated in the plaintiff’s [complaint] are
deemed true.’” Id. (quoting Lostrangio v. Laingford, 261 Va. 495, 497 (2001)). Under this
approach, review of the circuit court’s judgment is “functionally de novo.” Id. Here, “[b]ecause
no evidence was presented on the plea in bar, ‘the trial court, and the appellate court upon
review, must rely solely upon the pleadings in resolving the issue presented.’” Kinsey v. Va.
Elec. & Power Co., 300 Va. 124, 130 (2021) (quoting Massenburg, 298 Va. at 216).
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In either scenario, “[t]he existence of sovereign immunity is a question of law that is
reviewed de novo.” Gray v. Va. Sec’y of Transp., 276 Va. 93, 97 (2008) (quoting City of
Chesapeake v. Cunningham, 268 Va. 624, 633 (2004)).
B. The circuit court did not err in sustaining the Commonwealth’s pleas in bar, as the
maintenance of the Interstate Highway System in Virginia is a “legislative function”
for which the Commonwealth enjoys sovereign immunity.4
Appellants assert that the circuit court erred in sustaining the pleas in bar against their
claims in the amended complaints because 1) the complaints advanced causes of action that
“would lead a private person to be liable” and thus the Commonwealth could be held liable under
the VTCA and 2) “sovereign immunity does not apply to the maintenance of a nuisance under
the legislative function exception” to the VTCA. We disagree.
To resolve these appeals, we must first analyze the effect of the VTCA on the doctrine of
sovereign immunity. To begin, the doctrine of sovereign immunity is derived from “an axiom of
English law that ‘the law ascribes to the king the attribute of sovereignty,’ and thus, ‘no court
can have jurisdiction over him’ because ‘jurisdiction implies superiority of power.’” Clark v.
Va. Dep’t of State Police, 292 Va. 725, 728 (2016) (quoting 1 William Blackstone,
Commentaries *241-42). From this axiom, it follows that “[a]t common law, the
Commonwealth was immune from liability for torts committed by its officers, employees and
agents.” Doud v. Commonwealth, 282 Va. 317, 320 (2011) (quoting VEPCO v. Hampton
4
Note, as conceded at oral argument, appellants have waived their first assignment of
error by 1) failing to object to the circuit court’s ruling on the demurrers and failing to
incorporate by reference the allegations of the original complaints in the amended complaints, as
required by Code § 8.01-273(B); 2) failing to contemporaneously object to the circuit court’s
ruling on the demurrers and pleas in bar to the first complaints; and 3) failing to address one of
the independent grounds for the circuit court’s decision as to the initial complaints, which was
that the complaints failed to allege a valid respondeat superior claim because they failed to allege
a tortious act or omission by an employee of the Commonwealth. See, e.g., Manchester Oaks
Homeowners Ass’n v. Batt, 284 Va. 409, 421-22 (2012) (finding that failure to assign error to an
independent basis articulated by a circuit court for its judgment prevents review of the judgment
on appeal); Rule 5A:18.
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Redevelopment & Hous. Auth., 217 Va. 30, 32-33 (1976)). And this “immunity continue[d] to
apply in the absence of a legislative waiver by which the Commonwealth consent[ed] to be sued
in its own courts.” Id.“In 1981, the General Assembly enacted the [VTCA] which provides for an express,
limited waiver of the Commonwealth’s immunity from tort claims.” Rector & Visitors of the
Univ. of Va. v. Carter, 267 Va. 242, 244 (2004) (quoting Patten v. Commonwealth, 262 Va. 654,
658 (2001)). Our Supreme Court has previously observed that “in the 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 and the VTCA, being an enactment in
derogation of the common law, is strictly construed.” Doud, 282 Va. at 321. Also, in
interpreting the VTCA’s waiver, we may not “place any limitation on the clear and
comprehensive language of the statute, or . . . create an exception where none exists under the
guise of statutory construction,” as to do so “would be to defeat the purpose of the enactment and
to engage in judicial legislation.” Phelan v. Commonwealth, 291 Va. 192, 195 (2016).
Specifically, the VTCA, provides in pertinent part that
the Commonwealth shall be liable for claims for money . . . on
account of damage to or loss of property or personal injury or
death caused by the negligent or wrongful act or omission of any
employee while acting within the scope of his employment under
circumstances where the Commonwealth . . . , if a private person,
would be liable to the claimant for such damage, loss, injury or
death.
Commonwealth v. Muwahhid, 77 Va. App. 821, 829 (2023) (quoting Code § 8.01-195.3). The
VTCA also enumerates several exceptions to the waiver of sovereign immunity and where an
exception applies, the Commonwealth retains its sovereign immunity from tort claims. Code
§ 8.01-195.3(1)-(7). One such exception is the
“legislative-function exception,” [which] [preserves] immunity for
“[a]ny claim based upon an act or omission of the General
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Assembly or district commission of any transportation district, or
any member of staff thereof acting in his official capacity, or to the
legislative function of any agency subject to the provisions of this
article.”
Muwahhid, 77 Va. App. at 830 (quoting Code § 8.01-195.3(2)). Although the VTCA does not
define what constitutes a “legislative function,” our Supreme Court has previously held that the
term “legislative function” encompasses “the decision-making process by the municipality or the
state agency [that] entails the exercise of discretion . . . [including] determin[ing] whether public
funds should be expended.” Maddox v. Commonwealth, 267 Va. 657, 663 (2004) (quoting Code
§ 8.01-195.3(2)). In addition, even though we do not “equate a municipality’s exercise of a
governmental function with the exercise of a legislative function by an agency of the
Commonwealth,” we may consult such caselaw to further guide our decision on what actions
constitute a “legislative function.” Id.
Municipalities in Virginia “exercise two types of functions: governmental and
proprietary.” Cunningham, 268 Va. at 633; see also Hoggard v. City of Richmond, 172 Va. 145,
148 (1939) (noting this functional distinction). “A function is governmental in nature if it is
directly related to the general health, safety, and welfare of the citizens.” Robertson v. W. Va.
Water Auth., 287 Va. 158, 160 (2014). A governmental function also “entails the exercise of an
entity’s political, discretionary, or legislative authority.” Cunningham, 268 Va. at 634 (emphasis
added).
Here, “[t]he legislature has delegated broad powers to the highway officials of this state
and has vested them with wide discretion in the discharge of their duties with respect to the
construction, improvement, and maintenance of highways.” Ord v. Fugate, 207 Va. 752, 759
(1967). Moreover, the General Assembly has provided that “[t]he primary state highway
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system5 [in Virginia] shall be constructed and maintained by the Commonwealth under the
direction and supervision of the Board and the Commissioner of Highways.” Code § 33.2-310
(emphasis added). Finally, the General Assembly also permits “the [Commonwealth
Transportation] Board [to] plan, designate, acquire, open, construct, reconstruct, improve,
maintain, discontinue, abandon, and regulate the use of the Interstate System6 in the same
manner in which it is now or may be authorized to . . . regulate the use of the primary state
highway system.” Code § 33.2-300 (emphases added).
Conversely, “a function is proprietary in nature if it involves a privilege and power
performed primarily for the benefit of the municipality.” Gambrell v. City of Norfolk, 267 Va.
353, 357 (2004). Virginia “municipal corporations are immune from liability ‘when performing
governmental functions, but are not when exercising proprietary functions.’” Jean Moreau &
Assocs. v. Health Ctr. Comm’n, 283 Va. 128, 137-38 (2012) (quoting Carter v. Chesterfield
Cnty. Health Comm’n, 259 Va. 588, 590 (2000)). “Where governmental and proprietary
functions coincide, the governmental function is the overriding factor.” Transp., Inc. v. City of
Falls Church, 219 Va. 1004, 1006 (1979) (quoting Taylor v. City of Newport News, 214 Va. 9,
10 (1973)). And, in this context our Supreme Court has found that with respect to municipal
governments,
the planning, designing, laying out, and construction of streets and
roads has been held to be a governmental function, while the
routine maintenance of existing streets has been held to be
proprietary, subjecting a city to liability for its failure to maintain
5
The term “‘[p]rimary state highway system’ consists of all highways and bridges under
the jurisdiction and control of the Commonwealth Transportation Board and the Commissioner
of Highways and not in the secondary state highway system.” Code § 33.2-100.
6
The Interstate System is correspondingly defined as “[t]he Dwight D. Eisenhower
National System of Interstate and Defense Highways within the United States (including the
District of Columbia and Puerto Rico), [which] consists of highways designed, located, and
selected in accordance with [23 U.S.C. § 103(c)(4)(B)].” 23 U.S.C. § 103(c); Code § 33.2-100
(“‘Interstate System’ means the same as that term is defined in 23 U.S.C. § 103(c).”).
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its streets in good repair and in safe condition for travel, free from
dangerous defects or obstructions.7
Bialk v. City of Hampton, 242 Va. 56, 58 (1991) (emphases added) (internal citation omitted);
see, e.g., Gambrell, 267 Va. at 357-58. Thus, “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.” Id. However, our Supreme Court has also
“previously held that ‘not every municipal activity related to street maintenance is proprietary.’”
Harrell v. City of Norfolk, 265 Va. 500, 503 (2003) (quoting Transp., Inc., 219 Va. at 1005). For
example,
[t]raffic lights, blinking lights, warning signals, roadway markings,
railings, barriers, guardrails, curbings, and like devices are all
designed to control and regulate traffic and to insure its orderly and
safe flow on the streets. A determination of the need for such
devices and the decision to install or not to install them calls for
the exercise of discretion . . . . In the exercise of th[is] discretion
and in making a judgment, the city is performing a governmental
function.
Freeman v. City of Norfolk, 221 Va. 57, 60 (1980). Hence, where highway and street
maintenance performed by a municipality is concerned, whether such activity is governmental or
7
In the constitutional context, the Supreme Court of Virginia has found consistently that
“[t]he construction, maintenance, and repair of public highways is a governmental function,
which belongs primarily to, and may be exercised by, the state and state legislature.” Almond v.
Gilmer, 188 Va. 822, 836 (1949); see, e.g., Montgomery Cnty. v. Va. Dep’t of Rail & Pub.
Transp., 282 Va. 422, 437 (2011) (“Indeed, we have made clear that ‘[t]he construction,
maintenance and operation of a highway system is a governmental function.’” (quoting Almond,
188 Va. at 836)); Hinchey v. Ogden, 226 Va. 234, 238 (1983) (“The parties recognize that we
have consistently held that the construction, improvement, operation, and maintenance of public
highways is a governmental rather than a proprietary function.”); Main v. Dep’t of Highways,
206 Va. 143, 150 (1965) (“In Almond v. Gilmer, 188 Va. 822, 836 [(1949)], we held that the
construction, maintenance and operation of a highway system is a governmental function.”).
However, as none of these cases involved a question of sovereign immunity, we note these
authorities as merely persuasive to the question at bar.
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proprietary is largely determined by what the maintenance concerns and the discretion exercised
by the governmental entity.8 See Bialk, 242 Va. at 58.
Moving forward, in 2004, the Supreme Court of Virginia interpreted the
legislative-function exception to the application of the VTCA to extend to claims arising from
injuries caused by the Commonwealth’s alleged failure to maintain a sidewalk where the plaintiff
child was harmed riding his bicycle. See Maddox, 267 Va. at 663. In Maddox, the plaintiff
asserted that the failure to maintain the sidewalk constituted a nuisance. Id. But the Supreme
Court reasoned that, although it did not “equate a municipality’s exercise of a governmental
function with the exercise of a legislative function by an agency of the Commonwealth,” the
Commonwealth was immune from the suit as “design of a sidewalk by an agency of the
Commonwealth is a legislative function.” Id. It further noted that the Commonwealth had
statutory authority “over the supervision, management, construction, improvement, and
maintenance of public highways and roads.” Id. at 662. From this statutory authorization, the
Court further reasoned that in “[d]eciding whether the plan and design of the sidewalk at
issue . . . called for the exercise of discretion by an agency of the Commonwealth,” the
Commonwealth was required “to determine whether public funds should be expended to install
8
Compare Bialk, 242 Va. at 59 (holding that sovereign immunity barred a plaintiff’s
negligence claim arising from a city’s snow-removal street maintenance where the “City’s snow-
removal operations in this case were acts done for the common good in coping with an
emergency, [constituting] the exercise of a governmental function”), and Transp., Inc., 219 Va.
at 1006 (holding that though “the repair of a malfunctioning traffic signal bears some
relationship to street maintenance and displays, therefore, a characteristic of a proprietary
function,” “a system of signals is designed to regulate traffic, and its dominant purpose is to
reduce loss of life, limb, and property” causing this repair to overlap with a governmental
function, immunizing the city from negligence claims stemming from the repair), with Woods v.
Town of Marion, 245 Va. 44, 45 (1993) (finding that sovereign immunity did not bar negligence
claims related to a municipality’s failure to maintain streets by not removing ice that had formed
upon one of its streets when water leaked from pipes of the town’s waterworks), and Hall, 175
Va. at 553-54 (holding that the repair of two severe depressions or dips in the general road
surface in question fell under the city’s maintenance duties and were a proprietary function).
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those particular safety features.” Id. Hence, the Court concluded that in Maddox, the
Commonwealth was immune from suit because it was required to exercise its discretion. See id.
at 664.
As raised on brief by appellants, this Court has recently opined concerning the
legislative-function exception in Code 8.01-195.3(2) and the related distinction between
“governmental” and “legislative” functions for purposes of the VTCA. Muwahhid, 77 Va. App.
at 835. In Commonwealth v. Muwahhid, this Court affirmed a circuit court’s decision that
sovereign immunity did not apply to immunize the Commonwealth from a negligence claim by
an inmate’s wife who asserted that the employees of a correctional center “acted wrongfully” by
subjecting her to several searches prior to her visits with her husband. Id. at 826. In response,
the Commonwealth contended that its actions in executing the searches of the inmate’s wife
constituted a “governmental function” for which sovereign immunity applied. Id. at 827, 835.
Specifically, the Commonwealth asserted that the actions taken by the correctional officers in
searching the wife were in execution of the correctional center’s “policies and procedures” and
thus constituted a “legislative function.” Id. at 835. We found that argument unavailing because
“the corrections officers’ alleged actions did not involve discretionary policy decisions” such as
“determin[ing] whether public funds should be expended,” thereby preventing their actions from
constituting “a legislative function.” Id. (quoting Maddox, 267 Va. at 663).
To consider appellants’ assignment of error concerning the application of Muwahhid to
the facts alleged here, we must answer a question of first impression: does the text of the VTCA
and the corresponding caselaw permit the Commonwealth and its “agents, employees and
representatives” to enjoy sovereign immunity from claims asserting gross negligence for failing
to maintain the Interstate Highway System in Virginia? We answer that question in the
affirmative.
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First, when strictly interpreting the waiver of the Commonwealth’s sovereign immunity,
we hold that the General Assembly has enacted specific “legislative authority,” Cunningham,
268 Va. at 634 (emphasis added), empowering the Commonwealth to maintain both the
Interstate and state highway systems in Virginia and that the performance of such maintenance
constitutes a “legislative function,” Muwahhid, 77 Va. App. at 830 (quoting Code
§ 8.01-195.3(2)). In support, we note that the Commonwealth has been “delegated broad
powers” and “vested . . . with wide discretion . . . with respect to the construction, improvement,
and maintenance of highways.” Ord, 207 Va. at 759. From this general authority, the General
Assembly specifically vested the Commonwealth with the authority to maintain “[t]he primary
state highway system [in Virginia],” Code § 33.2-310, and that this specific authority also
extended “in the same manner” to “maintain[ing]” highways in the “Interstate System.” Code
§ 33.2-300. Hence, the Commonwealth’s “decision-making process” concerning how and which
sections of highway, both state and Interstate, are to be maintained and which ones should not in
any given year “entails the exercise of discretion . . . [including] determin[ing] whether public
funds should be expended” per these authorizing provisions. Maddox, 267 Va. at 663.9
We further find that appellants’ reliance on Muwahhid and similar cases discussing
sovereign immunity concerning the maintenance of highways and streets in a municipality is
unavailing in the context of sovereign immunity as it relates to the Commonwealth and its
agencies. Moreover, in Muwahhid, we found that correctional center officers’ execution of
“policies and procedures” in conducting searches did not constitute a “legislative function.” 77
Va. App. at 835. We reached that result because the actions of the correctional officers did not
9
This holding in no way “equate[s] a municipality’s exercise of a governmental function
with the exercise of a legislative function by an agency of the Commonwealth,” Maddox, 267
Va. at 663, as we find that only actions taken by an agency of the Commonwealth, explicitly
enumerated in its authorizing statutes, constitute a “legislative function” under the VTCA, Code
§ 8.01-195.3(2).
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involve discretionary policy decisions such as “determin[ing] whether public funds should be
expended.” Instead, we found their conduct was pursuant to “[t]he execution of policies and
procedures [and was] not a legislative function.” Id. (quoting Maddox, 267 Va. at 663).
Moreover, the Commonwealth raised no specific statutory authority and instead chose to rest its
sovereign immunity claims on the “municipal-liability test” alone. Id. at 832.
Here, unlike Muwahhid, the Commonwealth was explicitly authorized by statute to
maintain Virginia’s Interstate and primary state highways. Code §§ 33.2-300, -310. Thus, the
cases at bar are more similar to Maddox, where the Supreme Court specifically noted statutory
authority that permitted the Commonwealth’s specific actions before concluding that in
performing those actions the Commonwealth exercised the “discretion” necessary to constitute a
“legislative function.” Maddox, 267 Va. at 662, 663. Hence, since any statutory authorization
for the specific conduct in question was missing in Muwahhid, we find it distinguishable from
the facts here.10
Further, appellants’ contention that “the routine maintenance of existing streets has been
held to be proprietary” instead of “governmental” in support of their argument on brief cuts both
ways. Bialk, 242 Va. at 58 (emphasis added). Although “[a]s 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,” Gambrell, 267 Va. at 357-58,
“not every municipal activity related to street maintenance is proprietary,” Harrell, 265 Va. at
503 (quoting Transp., Inc., 219 Va. at 1005).
10
Thus, we also conclude that the circuit court did not err in declining to permit
appellants to amend their complaints to assert Muwahhid’s application, as any error from that
judgment would be merely “harmless error.” Spruill v. Garcia, 298 Va. 120, 127-28 (2019)
(quoting Commonwealth v. Swann, 290 Va. 194, 201 (2015) (per curiam)).
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Here, appellants alleged that the Commonwealth’s decision to only place “orange and
white barrels in the median” near where the accident occurred, instead of undertaking repairs or a
more extensive warning, constituted gross negligence. However, this “determination of the need
for such devices” to serve as “warning signals[] [or] roadway markings” has been previously
found to constitute an “exercise of discretion” that is a “governmental function.” Freeman, 221
Va. at 60. Also, since such an “exercise of discretion” was found to constitute a “legislative
function” in Maddox, 267 Va. at 663, the caselaw cited by appellants on brief arguably supports
the Commonwealth’s position that it is immune from appellants’ claims.
In addition, “where governmental and proprietary functions coincide, the governmental
function is the overriding factor.” Transp., Inc., 219 Va. at 1006 (quoting Taylor, 214 Va. at 10).
Hence, the Commonwealth’s decision to place “orange and white barrels in the median” near
where the accident occurred, was “directly related to the general health, safety, and welfare of
the citizens” by attempting to warn motorists of potential danger. Robertson, 287 Va. at 160.
Thus, as detailed above, this discretionary decision “entail[ed] the exercise of [the
Commonwealth’s] . . . legislative authority.” Cunningham, 268 Va. at 634 (emphasis added).
Moreover, since arguably, there is an overlap between the “governmental and proprietary
functions,” Transp., Inc., 219 Va. at 1006, involved in this maintenance, this circumstance
provides additional support for our conclusion that the Commonwealth is immunized from this
suit.
Finally, since we find that the Commonwealth exercised a legislative function in deciding
how to maintain the section of the interstate highway at issue consistent with its authorizing
statutes, we conclude that the circuit court did not err in sustaining the Commonwealth’s
sovereign immunity pleas in bar and dismissing appellants’ claims with prejudice.
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III. CONCLUSION
We conclude that appellants have failed to show that the circuit court erred in sustaining
the pleas in bar against their VTCA claims because the legislative-function exception applies to
immunize the Commonwealth. Consistent with the text of Code § 8.01-195.3(2) and the
Supreme Court of Virginia’s opinion in Maddox, we hold that since the General Assembly has
delegated the construction, repair, and maintenance of Virginia’s Interstate Highway System to
the Commonwealth in Code §§ 33.2-300, -310 and decisions related thereto are an “exercise of
discretion,” Freeman, 221 Va. at 60, related to the Commonwealth’s “legislative authority,”
Cunningham, 268 Va. at 634, the Commonwealth’s actions constituted a “legislative function”
within the scope of the exception, Maddox, 267 Va. at 662, 663. As a result, sovereign immunity
applies to the Commonwealth’s actions in this case, and we accordingly affirm the circuit court’s
judgment.
Affirmed.
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