Cunningham v. City of Chesapeake

PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Compton, S.J.
CITY OF CHESAPEAKE
v. Record No. 032974
HELEN CUNNINGHAM
OPINION BY
JUSTICE G. STEVEN AGEE
November 5, 2004
HELEN CUNNINGHAM
v. Record No. 040002
CITY OF CHESAPEAKE
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Norman Olitsky, Judge
Helen Cunningham filed a thirteen-count motion for judgment
against the City of Chesapeake (“the City”) alleging that her
August 30, 1998, miscarriage was caused by toxic water supplied
by the City. Counts I through IX of the motion for judgment
allege breach of contract, breach of warranty, battery,
negligence, nuisance, trespass and violation of the Virginia
Consumer Protection Act. Claims X through XIII allege claims of
fraud. Cunningham claimed compensatory damages of $5,000,000
1
and punitive damages of $1,000,000. In response, the City
1
Cunningham is lead plaintiff of a combined group of 214
plaintiffs who allege that their miscarriages were caused by
exposure to trihalomethanes in the City’s water on various dates
from 1984 through 2000. These cases were combined for pretrial
proceedings under the Virginia Multiple Claimants Litigation
Act, Code § 8.01-267.1, et seq. Each plaintiff requested
compensatory and punitive damages. The circuit court originally
entered special pleas of sovereign immunity and the statute of
limitations.
The trial court sustained the plea of the statute of
limitations as to Counts I through IX and dismissed those claims
with prejudice. The trial court overruled the plea as to Counts
X through XIII, denied the City’s claim of sovereign immunity,
and refused to dismiss Cunningham’s prayer for punitive damages.
Pursuant to Code § 8.01-267.8(B), the trial court made the
requisite findings enabling the parties to proceed with an
interlocutory appeal of the trial court’s judgment.
The City assigned error to the trial court’s denial of its
special pleas of sovereign immunity and the statute of
limitations as well as the refusal to strike Cunningham’s prayer
for punitive damages. Cunningham assigned error to the dismissal
of her non-fraud claims. We awarded the respective parties
appeals as to all these issues and consolidated the cases for
hearing.
I. BACKGROUND
Shortly after the City was formed in 1963, it commissioned
engineering studies to find a reliable water source that would
sustain future development. At that time, the City purchased
most of its municipal water supply from the Cities of Norfolk
designated Merri Abernethy as the lead plaintiff; however, she
nonsuited her case, and the court substituted Helen Cunningham
as lead plaintiff.
2
and Portsmouth, which was expensive and potentially inadequate.
This study recommended the Northwest River as a source of
drinking water.
In May 1975, the U.S. Army Corps of Engineers granted the
City a permit to withdraw water from the Northwest River and
construct the Northwest River Treatment Plant (“the Plant”).
The Plant was a conventional water treatment plant employing
chlorine as a disinfectant, and its design was approved in 1977
by the Virginia Department of Health. The Plant supplies most
of the City’s municipal water.
While the Plant was typical of its era, the Northwest River
was an atypical water source, with then undiscovered problems.
The river has high organic carbon levels. When chlorine, a
commonly used water purification chemical, is added it reacts
with the naturally occurring organic matter in the water to form
large amounts of trihalomethanes (“THMs”). At the time the
Plant was designed, laboratory instrumentation to measure THMs
was not in use, and THMs were not regulated contaminants.
In 1979, the Federal Safe Drinking Water Act, 42 U.S.C.
§§ 300f et seq., required the Environmental Protection Agency
(EPA) to publish a maximum contaminant level (“MCL”) for each
contaminant which “may have any adverse effect on the health of
persons.” 42 U.S.C. § 300g-1(b)(1)(A)(ii) (1976 & Supp. II
1979). THMs, the byproducts of water chlorination, were first
3
identified for scientific analysis in 1974. National Primary
Drinking Water Regulations; Disinfectants and Disinfection
Byproducts, 63 Fed. Reg. 69,390, 69,394 (Dec. 16, 1998)(codified
at 40 C.F.R. pts. 9, 141, and 142). In November 1979, the EPA
set an annual average MCL for total trihalomethanes (“TTHMs”)2 of
0.10 mg/L or 100 parts per billion (“ppb”). National Interim
Primary Drinking Water Regulations; Control of Trihalomethanes
In Drinking Water, 44 Fed. Reg. 68,624, 68,624 (Nov. 29, 1979)
(codified at 40 C.F.R. pt. 141). These new regulations became
binding on the City in November of 1983. Id. (providing an
effective date for the trihalomethane MCL of four years from
November 29, 1979, for water systems such as the City’s).
Shortly after the Plant came online in March of 1980, the
City began sampling for THMs, finding levels that averaged
between 200 and 350 ppb. The City retained Malcolm Pirnie,
Inc., an environmental engineering consulting firm, to evaluate
viable alternatives to reduce TTHM levels by the November 1983
regulatory effective date.
Malcolm Pirnie found that only two methods could
effectively reduce THMs from the Northwest River water. The
2
Throughout this opinion, “THMs” will refer to the class of
chemical compounds formed when chlorine reacts with organic
material in water. “TTHMs” will refer to the group of
compounds, including chloroform, bromodichloromethane,
dibromochloromethane, and bromoform, as they are regulated by
the EPA.
4
City adopted both of Malcolm Pirnie’s proposed solutions:
chlorine dioxide disinfection in the short term and air
stripping towers in the long term.3
Chlorine dioxide replaced chlorine as a water treatment
medium in August of 1983 and had the immediate effect of
reducing THMM levels within regulatory limits. The air
stripping system began operation in May 1985. Despite constant
monitoring and adjustment of the disinfectant and air stripping
process, the Plant still periodically experienced high levels of
THMs. In August 1985, the City began adding ammonia after the
air stripping process. The ammonia combined with any free
chlorine in the water supply in order to prevent the chlorine
from reacting with organic material and forming THMs. This
combined treatment process enabled the City to generally meet
the recognized THM limit of 100 ppb.
3
The air stripping method was 70% of the cost of chlorine
dioxide disinfection, but testing, designing and installing the
air stripping towers would take at least a year. In order to
meet the deadline for regulatory compliance, the City
immediately began chlorine dioxide disinfection. Chlorine
dioxide, unlike chlorine, combines less readily with the organic
material in the Northwest River water, forming fewer THMs. In
the air stripping system, water was pumped from the bottom of a
tower through the top and then left to trickle down through a
packing material. A high velocity air stream was simultaneously
run through the water, effectively stripping THM compounds out
of the water. The THMs exited the tower through vents. While
the chlorine dioxide system sought to limit the formation of
THMs, the air stripping system allowed them to form, and then
separated them out of the water supply.
5
In 1997, anticipating stricter regulatory limits on TTHMs
of 80 ppb, the City determined to replace the air stripping
towers with a reverse osmosis system. While the air strip system
could meet the 100 ppb limit, the new limit was “unattainable”
with that technology.
The reverse osmosis system could meet the new TTHM limits,
but the construction to modify the Plant necessitated an interim
period during which neither the air strip or reverse osmosis
system would be in operation, but chlorine disinfection would
continue. Concerned that high TTHM levels during this period
would push annual averages over 100 ppb and put the City in
violation of applicable regulations, the City petitioned the
State Health Commissioner (“Commissioner”) for a temporary
exemption from the water quality regulations, particularly the
TTHM limitations.4
On June 11, 1998, the Commissioner granted the City’s
petition for exemption. In granting the exemption, the
Commissioner found . . .
. . . [(1)] a compelling need for construction necessary to
modify the Northwest River Water Treatment Plant and to
improve the safety of the drinking water it produces . . .
[and (2)] the granting of an exemption to the TTHMs
4
The Virginia Administrative Code governs a petition for
temporary exemption in this circumstance. See 12 VAC 5-590-150.
6
standard will not result in an unreasonable risk to the
consumers’ health.5
(Emphasis added).
In compliance with the exemption requirements, the City
reported TTHM levels to the Virginia Department of Health
(“VDH”), installed manganese contactors at the Plant to reduce
TTHM levels, and posted public notice of the exemption in the
Virginian-Pilot on July 9, 1998.6
The City began removing the air stripping towers at the
Plant in preparation for the construction of the reverse osmosis
system in February 1998. That same month, the Los Angeles Times
reported that an unpublished study by the Reproductive
Epidemiology Section of the California Department of Health
Services (“the California study”) found that daily consumption
of more than five glasses of water with TTHM levels greater than
75 ppb increased the risk of spontaneous abortion for women in
5
Additionally, the Virginia Department of Health (“VDH”)
placed the following conditions on the City: follow a schedule
of compliance developed by VDH; monitor and report the
concentration of TTHMs in the water supply as prescribed by VDH;
operate the Plant in such a manner as to minimize TTHM
production; and provide public notice as required by the Code.
6
The notice explained the origin of THMs in the City’s
water supply and the known risks associated with consumption of
THMs: increased risk of cancer from consuming 2 quarts of water
daily that had THM levels in excess of 100 ppb over 70 years.
As required, the notice provided an opportunity for a hearing on
the exemption schedule. The City’s Director of Public
Communications also issued a press release on the exemption on
July 8, 1998, and notice of the exemption was inserted into
water bills. VDH terminated the exemption on June 4, 1999.
7
their first trimester of pregnancy. Within two months of
receiving a copy of the California study, the City undertook an
extensive campaign to inform the public of the possible risks to
women, who might become or were pregnant, of the possible
effects of consuming City water during the exemption period
while the air stripping towers were removed and the reverse
osmosis system was being constructed.
The City and the Chesapeake Department of Health (“CDH”)
issued three separate papers publicizing the water warnings: a
Public Health Bulletin (“the Bulletin”) on March 31, 1998, and a
news release (“the News Release”) and public notice (“the
Notice”) on April 1, 1998.
These warnings summarized the results of the California
study, explained that the City’s TTHM levels would temporarily
spike while the air stripping towers were off-line, and gave
instructions for precautions pregnant women should take in the
interim period. These precautions included using primarily
bottled water or boiling water before drinking. In addition,
the City set up recorded messages with health risk information
and reports of weekly TTHM levels on the City’s Water Quality
Hotline and Answerline, a CDH phone bank.
CDH faxed the Bulletin to Chesapeake obstetricians and
gynecologists, family practitioners, internists, CDH
Supervisors, City officials, the Chesapeake Public School
8
Administration, newspapers, television and radio station news
departments, Chesapeake General Hospital officials, Cox
Communications and VDH officials. On March 31, 1998, CDH faxed
a copy of the Bulletin to Cunningham’s obstetrician, Dr. Timothy
Hardy.
Media outlets provided extensive coverage of the water
warnings. There were 22 television news reports between March
31, 1998 and May 4, 1998. The Virginian-Pilot included articles
about the warning and Chesapeake’s water quality 15 times from
April 1 though December 21. The Chesapeake Post ran one article
on April 17. Some articles contained listings of fire stations
where affected residents could pick up free drinking water.
The City posted the Notice on its cable television bulletin
board, at Public Utilities Department Offices, and on the City’s
Internet homepage. The City distributed copies to City
libraries and recreation centers, mailed 73,062 copies of the
Notice to all postal patrons in Chesapeake and sent 13,620
copies of the Notice home with elementary school students.
Cunningham was a Chesapeake postal customer in April of 1998 but
testified that she did not receive the Notice at that time
“because people stole [her] mail.”
The City began mailing copies of the Notice to new water
customers in May of 1998 and continued until June 11, 1999. On
September 21, 1998, Cunningham, then known by her maiden name,
9
Helen L. Stringfield, signed up for City water service. Ms.
Stringfield’s water service was activated on September 30, 1998.
The New Customers Report run on October 1, 1998, lists
“Stringfield[,] Helen L[.]” among 31 new customers. The
Department of Public Utilities received this report on October
2, 1998, and mailed a cover letter and Notice to Ms. Stringfield
that day.
Cunningham claims that the City’s water supply has
historically exceeded regulatory limits for THMs, that the City
knew that high levels of THMs were harmful to her health and
that of her unborn child, that the City took steps to conceal
both the high levels of THMs in the water and the deleterious
effects on water consumers. She alleges that when the City
finally undertook a public notice campaign, that effort was
inadequate because the City failed to inform her individually of
the consequences of consuming City water.
The City argues that at the time the Plant was originally
designed, THMs were not a recognized water contaminant and not
regulated by the EPA. The City maintains it thereafter
consistently planned alternative designs to the Plant and the
water treatment system in order to meet the required regulatory
standards. The City claims that the Plant’s water has met EPA
specifications since the air stripping towers came online in
1985. Further, the City argues that the California Study
10
provided the first concrete evidence of a direct correlation
between high TTHM levels and a specific health concern and that
since receiving that study, the City has extensively publicized
the risks to pregnant women.
Cunningham admits that she is not alleging that her
miscarriage was the result of the cumulative effects of THMs or
the result of any exposure prior to conception. Cunningham
learned she was pregnant in July 1998 and miscarried on August
30, 1998. Thus, her claim of injury goes only to those acts
occurring during the exemption period, which encompassed all of
her pregnancy.
II. ANALYSIS
We initially address the issue of sovereign immunity
because, if it applies, all of Cunningham’s claims are barred.
A. The Law of Sovereign Immunity in Virginia
“[T]he doctrine of sovereign immunity is ‘alive and well’
in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 238,
564 S.E.2d 127, 132 (2002) (quoting Messina v. Burden, 228 Va.
301, 307, 321 S.E.2d 657, 660 (1984)). “Sovereign immunity is a
rule of social policy, which protects the state from burdensome
interference with the performance of its governmental functions
and preserves its control over state funds, property, and
instrumentalities.” City of Virginia Beach v. Carmichael Dev.
Co., 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000) (internal
11
quotation marks omitted). A special plea of sovereign immunity,
if proven, creates a bar to a plaintiff's claim of recovery.
Tomlin v. McKenzie, 251 Va. 478, 480, 468 S.E.2d 882, 884
(1996).
The trial court conducted a hearing on the City’s special
plea and received pleadings with attached exhibits from the
parties. Where no evidence is taken in support of the plea, the
trial court, and the appellate court upon review, must rely
solely upon the pleadings (which includes the voluminous
attachments in this case) in resolving the issue presented. Id.The existence of sovereign immunity is a question of law that is
reviewed de novo. See Franks v. Ross, 313 F.3d 184, 192 (4th
Cir. 2002) (citing Research Triangle Inst. v. Bd. of Governors
of the Fed. Reserve Sys., 132 F.3d 985, 987 (4th Cir. 1997)).
In the context of sovereign immunity, Virginia municipal
corporations exercise two types of functions: governmental and
proprietary. Gambrell v. City of Norfolk, 267 Va. 353, 357-58,
593 S.E.2d 246, 249 (2004); Harrell v. City of Norfolk, 265 Va.
500, 502, 578 S.E.2d 756, 757 (2003); Niese, 264 Va. at 238, 564
S.E.2d at 132; Carmichael, 259 Va. at 499, 527 S.E.2d at 782;
Fenon v. City of Norfolk, 203 Va. 551, 555, 125 S.E.2d 808, 811
(1962).
Governmental functions are powers and duties performed
exclusively for the public welfare. Carmichael, 259 Va. at 499,
12
527 S.E.2d at 782 (citing Hoggard v. City of Richmond, 172 Va.
145, 147-48, 200 S.E. 610, 611 (1939)). A function is
governmental if it entails the exercise of an entity's
political, discretionary, or legislative authority. Carter v.
Chesterfield County Health Comm'n, 259 Va. 588, 590-591, 527
S.E.2d 783, 785 (2000).
Proprietary functions are performed primarily for the
benefit of the municipality. Carmichael, 259 Va. at 499, 527
S.E.2d at 782 (citing Hoggard, 172 Va. at 147-48, 200 S.E. at
611). If the function is a ministerial act and involves no
discretion, it is proprietary. Carter, 259 Va. at 590-91, 527
S.E.2d at 785.
Sovereign immunity protects municipalities from tort
liability arising from the exercise of governmental functions.
Niese, 264 Va. at 238, 564 S.E.2d at 132 (citing Hoggard, 172
Va. at 147-48, 200 S.E.2d at 611). There is no municipal
immunity, however, in the exercise of proprietary functions.
Gambrell, 267 Va. at 357-58, 593 S.E.2d at 249; Carmichael, 259
Va. at 499, 527 S.E.2d at 782; Carter, 259 Va. at 590-91, 527
S.E.2d at 785.
This court has consistently held that when a municipality
plans, designs, regulates or provides a service for the common
good, it performs a governmental function. See, e.g., Maddox v.
Commonwealth, 267 Va. 657, 663, 594 S.E.2d 567, 570 (2004) (plan
13
and design of a sidewalk); Bialk v. City of Hampton, 242 Va. 56,
59, 405 S.E.2d 619, 621 (1991)(provision of emergency snow
removal services); Taylor v. City of Charlottesville, 240 Va.
367, 371, 397 S.E.2d 832, 835 (1990) (planning, designing,
laying out of streets and roads); Edwards v. City of Portsmouth,
237 Va. 167, 172, 375 S.E.2d 747, 750 (1989) (provision of
ambulance services); Freeman v. City of Norfolk, 221 Va. 57, 60,
266 S.E.2d 885, 886 (1980) (regulation of traffic through
traffic signals); Transportation Inc. v. City of Falls Church,
219 Va. 1004, 1006, 254 S.E.2d 62, 64 (1979) (regulation of
traffic); Fenon, 203 Va. at 556, 125 S.E.2d at 812 (provision of
emergency cleanup services); Ashbury v. City of Norfolk, 152 Va.
278, 292, 147 S.E. 223, 227 (1929) (provision of garbage
collection services).
In contrast, routine maintenance or operation of a
municipal service is proprietary. Gambrell, 267 Va. at 357-58,
593 S.E.2d at 249; Carter, 259 Va. at 592, 527 S.E.2d at 785.
See, e.g., City of Virginia Beach v. Flippen, 251 Va. 358, 362
467 S.E.2d 471, 474 (1996) (maintenance of sidewalks); City of
Richmond v. Branch, 205 Va. 424, 428, 137 S.E.2d 882, 885 (1964)
(routine maintenance of existing streets); City of Norfolk v.
Hall, 175 Va. 545, 552, 9 S.E.2d 356, 360 (1940) (faulty
maintenance or street construction); Chalkley v. City of
Richmond, 88 Va. 402, 409, 14 S.E. 339, 341 (1891) (failure to
14
keep a sewer drain in repair and free from obstructions).
B. The Application of Sovereign Immunity in this Case
In response to the City’s plea of sovereign immunity,
Cunningham contends that “the defense of sovereign immunity is
unavailable” to a municipality operating a water system. In
support of her argument, Cunningham cites our decisions in
Richmond v. Virginia Bonded Warehouse Corp., 148 Va. 60, 138
S.E. 503 (1927), and Woods v. Town of Marion, 245 Va. 44, 425
S.E.2d 487 (1993).7
The City contends there is no unique rule for sovereign
immunity claims related to a municipal waterworks, but that the
principles of law are those applicable to other municipal acts.
In that context, the City posits three grounds it claims
establish sovereign immunity in this case.
Initially, the City argues its action in supplying purified
water was undertaken for the health, safety and welfare of its
citizens and is thus an immune governmental function. Second,
the City avers it “used its municipal discretion to design,
construct and upgrade the . . . Plant,” which is a legislative
function protected from liability. Finally, the City contends
supplying purified water was the exercise of a power delegated
7
Cunningham also cites our decision in Leonard v. Town of
Waynesboro, 169 Va. 376, 193 S.E. 503 (1937), as authority for
her position. However, that case involved the liability of a
municipality under a theory of quantum meruit for the
construction of a water line.
15
by statute, Code § 15.2-2109, and is thus immune from claims as
an exercise of the authority of the Commonwealth.
The distinction between a municipality’s governmental and
proprietary functions is more readily stated in theory rather
than applied in actual practice. “Although the principles for
differentiating governmental and proprietary functions are
easily recited, as we have often noted, application of these
principles has occasioned much difficulty.” Carter, 259 Va. at
592, 527 S.E.2d at 785 (citing Ashbury, 152 Va. at 282, 147 S.E.
at 224) (internal quotation marks omitted). Nonetheless,
because we conclude the acts complained of by Cunningham were
within the exercise of the City’s discretionary legislative
powers and thus a governmental function, we find the trial court
erred in failing to sustain the City’s plea of sovereign
immunity.
Cunningham grounds her argument to bar the application of
sovereign immunity on language first found in Richmond v.
Virginia Bonded Warehouse Corp.
[T]he operation of a water department for the purpose
of supplying water for domestic and commercial
purposes is a private or proprietary right, and for
negligence in such operation a municipality is liable
in like manner as a private individual.
148 Va. at 70-71,138 S.E. at 506.
In Richmond, the plaintiff sought recovery against the City
of Richmond for damages caused by the malfunction of its
16
sprinkler system when a city employee negligently turned on the
water supply to the sprinkler system when it was under repair,
ruining the goods in the warehouse. 148 Va. at 68-69, 138 S.E.
at 505-06. We found sovereign immunity did not apply to the
negligent performance of a clearly ministerial act of routine
maintenance. Id. at 72, 138 S.E. at 507. The planning and
design of the municipal water system was not an issue in
Richmond, so the analysis of sovereign immunity based on a
discretionary legislative function was not before the Court.
Citing Richmond, we later held in Woods v. Town of Marion
that sovereign immunity did not apply to shield the Town from
liability. 245 Va. at 47, 425 S.E.2d at 489. The Town failed
to maintain its water pipes to prevent water from leaking onto a
public street and forming ice that the Town subsequently
neglected to remove for several weeks and by which the plaintiff
was injured. Id. at 45, 425 S.E.2d at 488. Relying on these
cases, Cunningham contends sovereign immunity cannot apply with
regard to a municipal water system. We disagree.
Neither Richmond nor Woods established a special rule
barring sovereign immunity in any case involving a municipal
water system. These cases merely recognize that acts of
negligence in routine maintenance of municipal water supply
facilities are nonimmune ministerial acts of a proprietary
function. By contrast, in Stansbury v. City of Richmond, 116
17
Va. 205, 207, 81 S.E. 26, 27 (1914), we observed that “[t]he
adoption of a plan for supplying a city . . . with water
involves the exercise of a delegated governmental power; and an
error of judgment with respect to the efficiency and adequacy of
such systems is not in the first instance reviewable by the
courts.”
We held in Stansbury that sovereign immunity shielded the
City from liability for a claim of inadequate water pressure
from the municipal waterworks. Id. at 209-10, 81 S.E. at 27-28.
While the water pressure at the plaintiff’s home was initially
inadequate, the City was reconfiguring its water system to
correct the problem. Id. at 210, 81 S.E. at 28. In effect, the
City was in a continuum of planning, designing and implementing
the planned design of its municipal water service to provide
appropriate water pressure. Sovereign immunity applied to
protect the City because it was exercising its discretionary
legislative power of designing the means to deliver water
service. We quoted with approval the analysis in Johnston v.
District of Columbia, 118 U.S. 19 (1886):
The duties of the municipal authorities, in adopting a
general plan of drainage, and determining when and
where sewers shall be built, of what size and at what
level, are of a quasi judicial nature, involving the
exercise of deliberate judgment and large discretion,
and depending upon considerations affecting the public
health and general convenience . . . and the exercise
of such judgment and discretion, in the selection and
adoption of the general plan or system of drainage, is
18
not subject to revision by a court or jury in a
private action.
Stansbury, 116 Va. at 209, 81 S.E. at 27 (citing Johnston, 118
U.S. 19, 20-21 (1886)).
As Stansbury indicates, the planning, design and
implementation of a municipal water system is no different than
other municipal acts in the context of a sovereign immunity
analysis. By contrast, the municipal actions in the cases cited
by Cunningham involve routine maintenance or clerical acts
devoid of any nexus to a discretionary governmental function of
design or planning. Other than the fact that the acts in
Richmond and Woods involved a water system, those claims are no
different than those for negligent street maintenance or other
clearly ministerial acts where sovereign immunity does not
apply.
What we must determine is whether the City’s action to take
down the air stripping towers and reconstruct the Plant for the
reverse osmosis system, thereby temporarily creating higher TTHM
levels during the exemption period covering Cunningham’s
pregnancy and miscarriage, was a governmental or proprietary
act. It is the City’s choice to change the design of its water
treatment system which Cunningham has pled as the basis for the
City’s liability. Specifically, Cunningham pled that the City
was at fault in choosing the reverse osmosis system because “the
19
City could have, but did not, use other methods that reduce or
eliminate THM contamination . . . [and] alternate water
treatment methods could and should have been used.” For the
following reasons, we find the City’s action to be a
governmental function in the exercise of its discretionary
legislative powers.
The City’s decision to move from the air stripping system
to the reverse osmosis system was made in the interest of the
public health. In February of 1998, the California Study made
the City aware that high TTHM levels had increased the risk of
possible miscarriages. The CDH had informed the City that it
was “in the best interests of the health of the citizens of
Chesapeake that the City transition to the new reverse osmosis
plant” because “the high organics will never dissipate” and if
the transition were not made, the City would “always be faced
with the risk of high THMs,” ultimately concluding that “the
new plant poses a permanent solution to the problem and removes
any future risk of spontaneous abortion related to THMs.” Thus,
reverse osmosis could meet the new TTHM regulatory levels and
the air stripping technology could not. In that context, the
Commissioner determined in granting the City’s regulatory
exemption that there was a “compelling need for construction
necessary to modify the Northwest River Water Treatment
20
Plant. . .to improve the safety of the drinking water it
produces.” (Emphasis added).
The City’s decision to remove the air stripping towers and
to construct the reverse osmosis system, with the knowledge that
TTHM levels would rise, was an exercise of the City’s
legislative discretion and its inherent police power. “[T]he
determination of the public improvements to be made by a
municipality [is] a legislative function.” Leonard v. Town of
Waynesboro, 169 Va. 376, 385, 193 S.E. 503, 507 (1937).
Deciding that the long-term gains to Chesapeake residents
outweighed the short-term potential dangers to the public
health, the City undertook the improvements and made an effort
to alleviate the danger to the public by widely publicizing the
known hazards to women who were or might become pregnant. The
Commissioner verified this decision as he “determined that the
granting of an exemption to the TTHMs standard will not result
in an unreasonable risk to the consumer’s health.” Municipal
decisions regarding the determination of priorities directly
related to the general health, safety and welfare of citizens
are exercises of a governmental function. See Gambrell, 267 Va.
at 359, 593 S.E.2d at 250.
The City’s exercise of its legislative discretion to
redesign the Plant by replacing the air stripping towers with
the reverse osmosis facility is no different than a
21
municipality’s design and planning of a roadway, even if other
design alternatives were available.
A municipal corporation, in selecting and adopting a
plan for the construction of a public street, acts in
a discretionary, governmental capacity and is immune
from liability for injuries resulting from its errors
in judgment made in that capacity.
Taylor, 240 Va. at 371, 397 S.E.2d at 835 (citing Hall, 175 Va.
at 551, 9 S.E.2d at 359).
Cunningham acknowledges on brief that “the City may have
exercised discretion in establishing the Northwest River Plant,”
but argues all acts after the initial design decision are per se
proprietary functions. We rejected that notion in Stansbury
where the City of Richmond was not in the initial construction
of a water system but in a continuum of planning and redesigning
the existing system just as the City did in the case at bar. We
also find no authority for Cunningham’s proposition that
municipal design and planning as a discretionary legislative
function is frozen in time, never to be subject to redesign or
planning at any point.
The City’s ongoing redesign and planning of its municipal
water system is no different than the design or redesign of its
streets and other facilities that may change from time to time.
Even assuming there could be elements of the operation of a
water system mixed with the planning and design elements, we
have noted on many occasions “when governmental and proprietary
22
functions coincide, the governmental function is the overriding
factor and the doctrine of sovereign immunity will shield the
locality from liability.” Carmichael, 259 Va. at 499, 527
S.E.2d at 782 (internal quotation marks omitted).
Cunningham further alleges that the City did not provide
adequate information of the water supply’s known risks to
pregnant women. Like weighing priorities in making public
improvements, the dissemination of information to the public is
also a governmental function. Downs v. City of Southfield, 2001
Mich. App. LEXIS 2057 at *2 (Mich. Ct. App. 2001) (non-
precedential decisions). See also Allen v. United States, 816
F.2d 1417, 1423 (10th Cir. 1987) (concluding that the government
was immune from liability for the failure of the Atomic Energy
Commission administrators and employees to warn the public about
possible dangers more fully than they had); Loughlin v. United
States, 286 F. Supp. 2d 1, 23 (D. D.C. 2003) (finding that the
Army's decision not to issue warnings about munitions burials is
a protected policy judgment); Valdez v. United States, 56 F.3d
1177, 1180 (9th Cir. 1995)(government decision not to bring the
existence of a natural hazard to the attention of the public is
discretionary). Accordingly, sovereign immunity also applies to
the governmental function of providing notice and bars
Cunningham’s claim in that regard.
III. CONCLUSION
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Because we find that the City’s redesign and planning of
the Plant and its public information campaign regarding
temporary risks associated with consuming City water were
governmental functions, sovereign immunity applies to bar
Cunningham’s claims. The trial court thus erred in denying the
City’s plea of sovereign immunity.8
The judgment of the trial court will be affirmed in part as
to the dismissal of counts I to IX of the motion for judgment.
The judgment of the trial court will be reversed in part as to
the failure to dismiss the remaining counts of the motion for
judgment and the claim of punitive damages. Final judgment will
be entered for the City.
Affirmed in part,
reversed in part,
and final judgment.
8
As the application of sovereign immunity bars all of
Cunningham’s claims, it is unnecessary to address any other
assignments of error. Furthermore, having determined the City’s
acts were of a discretionary legislative function, we do not
address the City’s other proffered grounds for the application
of sovereign immunity.
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