Summary
In DePriest, we considered whether a bus was a "recreational facility" within the meaning of Code § 15.1-291, the predecessor statute to Code § 15.2-1809.
Summary of this case from Decker v. HarlanOpinion
46214 Record No. 881089 Record No. 881108
January 12, 1990
Present: Carrico. C.J., Compton, Stephenson, Russell, Whiting and Lacy. JJ., and Harrison, Retired Justice
The trial courts improperly set aside verdicts against defendant county employee, who was driving when plaintiffs were injured in an accident, because at the time of the accident the county-owned bus was not being used as a "recreational facility" within the meaning of Code Sec 15.1-291, providing for immunity for simple negligence, and those decisions are reversed.
Cities, Counties and Towns — Sovereign Immunity — Code Sec. 15.1-291 Torts — Personal Injury — Negligence — Simple — Gross — Damages
A county department of recreation sponsored a recreational trip for senior citizens to a retail establishment. It furnished a bus, and defendant driver, a county employee. He lost control of the bus which overturned and injured two of the passengers. Each filed an action against the driver. In the first case, the court ruled that the driver was guilty of ordinary negligence as a matter of law and submitted the issue of damages to the jury. However, the trial court set aside the substantial verdict and entered final judgment for the driver on the ground that he was entitled to the benefit of Code Sec. 15.1-291, and could only be liable if he was guilty of gross negligence, which finding the court concluded was not justified by the evidence. In the second case the issues of the driver's reasonableness in operating the bus and the passenger's damages were submitted to a jury, which returned a verdict in her favor. The court set aside the verdict on the same grounds as in the first case and entered judgment for the bus driver. The plaintiff passengers appeal.
1. Code Sec. 15.1-291 limits the liability in damages for personal injuries sustained at county "recreational facilities" to that caused by gross or wanton negligence.
2. At the time of this accident, the bus was not being used as a "recreational facility" within the meaning of Code Sec. 15.1-291, where it is defined as a place for citizens' diversion and entertainment.
Appeal from a judgment of the Circuit Court of the City of Richmond. Hon. Theodore J. Markow, judge presiding. (Record No. 881089)
Reversed and final judgment. (Record No. 881089)
Appeal from a judgment of the Circuit Court of the City of Richmond. Hon. Melvin R. Hughes, Jr., judge presiding. (Record No. 881108)
Reversed and final judgment. (Record No. 881108)
Woodson T. Drumheller for appellant. (Record Nos. 881089 and 881108)
Rhysa Griffith South, Assistant County Attorney (Joseph P. Rapisarda, Jr., County Attorney, on brief), for appellee. (Record Nos. 881089 and 881108)
The dispositive issue in these two consolidated cases is whether a bus used by a county recreation department to transport passengers on a recreational trip is a "recreational facility" within the meaning of Code Sec. 15.1-291. This statute provides:
No city or town which shall operate any bathing beach, swimming pool, park, playground or other recreational facility shall be liable in any civil action or proceeding for damages resulting from any injury to the person or property of any person caused by any act or omission constituting simple or ordinary negligence on the part of any officer or agent of such city or town in the maintenance or operation of any such recreational facility. Every such city or town shall, however, be liable in damages for the gross or wanton negligence of any of its officers or agents in the maintenance or operation of any such recreational facility.
The immunity created by this section is hereby conferred upon counties in addition to, and not limiting on, other immunity existing at common law or by statute.
On February 22, 1986, the Henrico County Department of Parks and Recreation sponsored a recreational trip to the Williamsburg Pottery, a retail establishment, for senior citizens of the Gravel Hill Community Center. In doing so it furnished one of its buses and a driver, Wayne Preston Pearson, a recreational assistant employed by Henrico County. En route to Williamsburg, Pearson lost control of the bus in New Kent County while attempting to avoid a pothole. The bus overturned and Mary L. DePriest and Martha C. Armstead, two of the several passengers, were injured.
DePriest and Armstead filed separate actions against Pearson and his employer, Henrico County. Before either of these cases was tried, DePriest and Armstead nonsuited the county.
DePriest's action was tried before a jury on June 22, 1988. At trial, the court ruled that Pearson was guilty of ordinary negligence as a matter of law, and submitted only the issue of damages to the jury. The jury returned an $85,000 verdict for DePriest. Later, the trial court set aside the verdict, and entered final judgment for Pearson on the ground that he was entitled to the benefit of Code Sec. 15.1-291, and could only be liable if he was guilty of gross negligence in the operation of the bus. The court concluded that the evidence was insufficient to justify such a finding.
Armstead's case was tried on July 13, 1988. The issues of Pearson's reasonableness in operating the bus and Armstead's damages were submitted to a jury, which returned a verdict of $66,000 in Armstead's favor. Later, the court set that verdict aside upon the same grounds that DePriest's verdict had been set aside and entered judgment for Pearson.
We granted an appeal in each case and consolidated them for argument. On appeal, the plaintiffs argue that Code Sec. 15.1-291 is inapplicable because the bus was not a "recreational facility" within the meaning of the statute. Moreover, they contend that Pearson cannot rely upon the benefits of the statute, which extend only to the named governmental entities. Pearson's sole argument is that he is entitled to the benefit of the statute because he was operating a "recreational facility" at the time the bus overturned.
Because we uphold the plaintiff's first contention, we need not, and do not, rule upon the second contention.
We conclude that at the time of the accident, the bus was not being used as a "recreational facility" within the meaning of Code Sec. 15.1-291. In Frazier v. City of Norfolk, 234 Va. 388, 362 S.E.2d 688 (1987), we said the statutory term "recreational facility" was unambiguous and meant "a place for citizens' diversion and entertainment. It is a place, like a bathing beach, swimming pool, park, or playground, where members of the public are entertained and diverted, either by their own activities or by the activities of others." Id. at 392, 362 S.E.2d at 690. Obviously, the county was not operating a "recreational facility" when it was transporting passengers by bus to an outing in Williamsburg. In these cases, the bus and Pearson's use of it simply served as a means of transportation.
Accordingly, we conclude that the verdicts should not have been set aside. We will reverse the appealed judgments, and will enter final judgment for the plaintiff in each case.
Record No. 881089 — Reversed and final judgment. Record No. 881108 — Reversed and final judgment.