JT's Hauling, LLC v. Commonwealth of Virginia ( 2024 )


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  •                                           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.
    -2-
    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.
    -3-
    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).
    -4-
    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.
    -5-
    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
    -6-
    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
    -7-
    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).”).
    -8-
    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.
    -9-
    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).
    - 10 -
    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.
    - 11 -
    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).
    - 12 -
    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)).
    - 13 -
    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.
    - 14 -
    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.
    - 15 -
    

Document Info

Docket Number: 1780233

Filed Date: 11/19/2024

Precedential Status: Precedential

Modified Date: 11/19/2024