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

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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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