Opinion
Record No. 920938
February 26, 1993
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG WILLIAM H. LEDBETTER, JR., JUDGE
Present: All the Justices
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
In this appeal, brought by homeowners of three adjacent properties in the City of Fredericksburg, we consider the following issues: (1) whether the trial court erred in concluding that the doctrine of sovereign immunity barred the homeowners' negligence action against the City; (2) whether the trial court erred in ruling that the homeowners' motion for judgment failed to state a cause of action against the City because it did not allege that the City had notice of an existing defect in the sewer system; and (3) whether the trial court erred in denying the homeowners' request for leave to file an amended motion for judgment.
Since the trial court decided this case on demurrer, we treat the facts alleged in the motion for judgment as true. Ryland Group v. Wills, 229 Va. 459, 461, 331 S.E.2d 399, 401 (1985). On October 29, 1990, the City's central sewage system "backed up or overflowed," causing raw sewage to enter the houses of Katherine J. Wilshin, Dorothy F. Gallahan, and Donald R. and Malinda Peeples (collectively, the homeowners). The homeowners allege that this event was caused by the City's negligence in the design, construction, maintenance, and operation of its sanitary sewer system.
In response, the City filed a demurrer, asserting a special plea that the acts complained of were purely governmental in nature and, therefore, the homeowners' action was barred under the doctrine of sovereign immunity. In its letter opinion of February 19, 1992, the trial court ruled that the City was immune from suit on the facts of the action pleaded, stating that "in Virginia the operation and maintenance of a sewer system is a governmental function." The trial court then opined:
Assuming that municipal sewer maintenance would be classified in Virginia as a proprietary function rather than governmental, the principles relating to streets and sidewalks would apply. In an action against a city for injuries resulting from negligence in the maintenance of streets and sidewalks, notice, actual or constructive, must be shown. City of Virginia Beach v. Roman, 201 Va. 879[, 114 S.E.2d 749] (1960). . . . Here, the motion for judgment does not contain sufficient facts to state a cause of action for negligence in the maintenance of the City's sewer system even if that function were proprietary in nature.
Following issuance of the trial court's letter opinion, the homeowners requested leave to file an amended motion for judgment. The amended motion for judgment contained five counts, alleging (1) trespass, (2) an unconstitutional taking of property, (3) breach of contract, (4) public nuisance, and (5) negligence, including an allegation that the City "had, or should have had, actual or constructive notice that there were problems with the sanitary sewage system which would allow a blockage of grease and other matter to occur."
The trial court denied the homeowners' request to amend the motion for judgment on the grounds that its prior holding of sovereign immunity barred the trespass and negligence counts. It also ruled that the remaining counts in the motion for judgment were not applicable to the facts pleaded therein. Accordingly, the court dismissed the action, and this appeal followed.
The homeowners first contend that the trial court erred in ruling that the doctrine of sovereign immunity barred their negligence action against the City. In considering this argument, we apply a well-settled distinction regarding the functions of a municipal corporation. As this Court stated inTaylor v. City of Charlottesville, 240 Va. 367, 370, 397 S.E.2d 832, 834 (1990):
A municipal corporation is clothed with a two-fold function — one governmental, the other private or proprietary. In the performance of governmental functions, a municipality is immune from liability for its failure to exercise those functions and for its negligence in exercising them. In the performance of proprietary functions, however, a municipality is not immune from liability for its negligence.
Based on this distinction, we separate our consideration of the homeowners' claim of negligent design from their remaining claims that the system was negligently constructed, operated, and maintained.
The design of a sanitary sewer system is a governmental, rather than a proprietary, function because it requires the exercise of discretionary powers and judgment on the part of the municipality. See Freeman v. City of Norfolk, 221 Va. 57, 60, 266 S.E.2d 885, 886 (1980). Therefore, the City is immune from liability for negligence in the design of that system,Taylor, 240 Va. at 370, 397 S.E.2d at 834, and the trial court properly sustained the City's demurrer on that basis.
In contrast, the construction, operation, and maintenance of public works improvements, such as water and sewer systems, are proprietary functions, for which a municipality remains liable for damages caused by its negligence. Howlett v. City of S. Norfolk, 193 Va. 564, 567, 69 S.E.2d 346, 348 (1952);Hoggard v. City of Richmond, 172 Va. 145, 148, 200 S.E. 610, 611 (1939).
We applied this rule recently in Woods v. Town of Marion, 245 Va. ___, ___, ___ S.E.2d ___, ___ (1993). In Woods, this Court emphasized that the liability of a municipality for damages caused in its exercise of a proprietary function is no different from that of a private person. 245 Va. at ___, ___ S.E.2d at ___; see also Hoggard, 172 Va. at 148, 200 S.E.2d at 611. Applying these principles here, we hold that the trial court erred in ruling that the doctrine of sovereign immunity barred the homeowners' allegations concerning the negligent construction, operation, and maintenance of the City's sanitary sewer system.
The homeowners next contend that the trial court erred in ruling that the negligence count of the original motion for judgment did not allege sufficiently that the City had notice of the defective condition of the sewer system. We agree. The motion for judgment plainly sets forth a claim that the City had notice of the condition alleged. Paragraph 22 of the motion for judgment, set forth in the negligence count, states: "That the Defendant had, or should have had, actual or constructive notice that there were problems with the sanitary sewage system which would allow a blockage of grease and other matter to occur."
The homeowners next argue that the trial court erred in denying them leave to file an amended motion for judgment. As stated above, the trial court denied the request to amend the negligence count, based on its prior ruling that the doctrine of sovereign immunity barred that claim. Since we have held that the trial court erred in that ruling with respect to the construction, maintenance, and operation of the sewer system, we likewise hold that it erred in denying leave to amend the allegations of negligence relating to those activities. Further, since the trial court was correct in holding that the City was immune from suit for negligence in its design of the system, we uphold the court's subsequent ruling denying leave to amend that allegation.
The trial court also denied the homeowners' request to allege a separate count of trespass, ruling that it would be barred by sovereign immunity, since it arose from the City's alleged negligence in operating and maintaining the sewer system. Based on our above-stated holding on sovereign immunity, we reverse the trial court's decision here.
We find no error, however, in the trial court's further decision to deny the homeowners leave to allege the additional counts of unconstitutional taking of property, breach of contract, and public nuisance.
For these reasons, we will affirm in part, and reverse in part, the judgment of the trial court and remand this case to it for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.