Present: Lacy, Keenan, Koontz, Kinser, Lemons and Agee,
JJ.
JOSHUA MADDOX, AN INFANT WHO
SUES BY HIS PARENTS AND NEXT FRIENDS,
TOM AND AMY MADDOX
v. Record No. 031064 OPINION BY JUSTICE CYNTHIA D. KINSER
April 23, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMELIA COUNTY
Thomas V. Warren, Judge
Joshua Maddox (“Maddox”), an infant suing by his
parents and next friends, Tom and Amy Maddox, brought an
action against the Commonwealth of Virginia
(“Commonwealth”) for personal injuries Maddox suffered in a
bicycle accident. In his motion for judgment, Maddox
asserted separate claims for negligent construction and
negligent maintenance of a sidewalk, and separate claims
for creating a nuisance and maintaining a nuisance due to
the alleged dangerous condition posed by the design of the
sidewalk. The circuit court granted the Commonwealth’s
plea of sovereign immunity and dismissed the motion for
judgment. Maddox appealed to this Court on the sole issue
of whether a claim against the Commonwealth sounding in
nuisance is barred under the doctrine of sovereign
1
immunity.1 Because we conclude that Maddox’s nuisance
claims are precluded by the legislative function exception
to the Commonwealth’s waiver of sovereign immunity in the
Virginia Tort Claims Act (“the Act”), specifically Code
§ 8.01-195.3(2), we will affirm the judgment of the circuit
court.
RELEVANT FACTS2
Maddox was injured while riding his bicycle on a
public sidewalk along Washington Street in an area known as
“Amelia Village” located in Amelia County. The front tire
of his bicycle caught on the inside edge of the sidewalk,
propelling Maddox and his bicycle into the air. There was
a “sharp and sudden drop off from the sidewalk into the
adjoining yard.” Maddox was thrown into the yard where he
landed on his left elbow, injuring it.
The sidewalk was part of a project constructed by the
Commonwealth and known as “the Route 1003 State Highway
Project, No. 1003-004-172-501” (“the Project”). Maddox
1
Maddox has not raised on appeal any issue concerning
the circuit court’s dismissal of the counts alleging
negligent construction and maintenance.
2
Because the circuit court decided this case upon a
plea of sovereign immunity without an evidentiary hearing,
we will state the facts as alleged in the pleadings and
take those facts as true for the purpose of resolving the
issue presented. Niese v. City of Alexandria, 264 Va. 230,
233, 564 S.E.2d 127, 129 (2002).
2
alleged that the Commonwealth “was negligent in creating
the sharp and sudden drop off from the sidewalk into the
adjoining yard where the accident occurred” and in
maintaining that drop off. Continuing, he asserted that
the Commonwealth could have prevented the resulting
dangerous condition “by constructing a retaining wall
and/or adequately backfilling the adjoining area.” In the
negligence counts, Maddox alleged that the Commonwealth
“failed to use ordinary care in both planning and
constructing the changes and alterations to the area at
issue” and “in the maintenance of the area.”
Incorporating by reference his allegations set forth
in the negligent construction and maintenance counts,
Maddox further alleged that the Commonwealth created a
nuisance by failing “to take measures to guard against the
sharp and dangerous sidewalk ledge” and the “sharp drop
off,” thereby imperiling the safety of the public sidewalk.
Finally, he asserted that, by allowing himself and “other
members of the community to be continuously exposed to the
dangerous sidewalk ledge,” the Commonwealth maintained a
nuisance that imperiled “the safety of the public sidewalk
area at issue” and that was “dangerous and hazardous in and
of itself.”
ANALYSIS
3
This Court has previously recognized that the
Commonwealth and its agencies are immune from liability for
the tortious acts of their agents, employees, and servants
absent express statutory or constitutional provisions
waiving immunity. University of Virginia v. Carter, 267
Va. 242, 244, 591 S.E.2d 76, 78 (2004); Baumgardner v.
Southwestern Virginia Mental Health Inst., 247 Va. 486,
489, 442 S.E.2d 400, 401 (1994); Virginia Elec. & Power Co.
v. Hampton Redevelopment & Hous. Auth., 217 Va. 30, 32, 225
S.E.2d 364, 367 (1976); Elizabeth River Tunnel Dist. v.
Beecher, 202 Va. 452, 456-57, 117 S.E.2d 685, 689 (1961);
Kellam v. School Bd. of the City of Norfolk, 202 Va. 252,
254, 117 S.E.2d 96, 97 (1960); Eriksen v. Anderson, 195 Va.
655, 657, 79 S.E.2d 597, 598 (1954). The General Assembly
provided an express, limited waiver of the Commonwealth’s
immunity in 1981 by enacting the Virginia Tort Claims Act,
Code §§ 8.01-195.1 through –195.9. Because the Act is a
statute in derogation of the common law, its waiver of
immunity must be strictly construed. Carter, 267 Va. at
245, 591 S.E.2d at 78; Melanson v. Commonwealth, 261 Va.
178, 181, 539 S.E.2d 433, 434 (2001); Baumgardner, 247 Va.
at 489, 442 S.E.2d 402.
In pertinent part, the Act imposes liability on the
Commonwealth for
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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.
Code § 8.01-195.3. There are, however, exceptions to the
Commonwealth’s waiver of immunity. At issue here is the
exception for “[a]ny claim based upon an act or omission of
the General Assembly or district commission of any
transportation district, or any member or staff thereof
acting in his official capacity, or to the legislative
function of any agency subject to the provisions of this
article.” Code § 8.01-195.3(2). In other words, the
provisions of Code § 8.01-195.3(2) preserve the
Commonwealth’s immunity from liability in tort for any act
or omission in the exercise of the legislative function of
an agency of the Commonwealth.
Maddox argues that the term “legislative function”
includes such activities as setting rates for public
utilities, classifying criminal offenses, levying taxes,
drafting statutes, and promulgating rules for governing
prisons but does not encompass creating and maintaining a
nuisance. In his view, the latter does not involve the
determination of legislative policy. Relying on the
statement that “[a] function is considered governmental if
5
it is the exercise of an entity’s political, discretionary,
or legislative authority,” Carter v. Chesterfield County
Health Comm’n, 259 Va. 588, 591, 527 S.E.2d 783, 785
(2000), Maddox posits that “an agency’s ‘legislative
function’ is a subset of its broader governmental function”
and that the two terms, therefore, cannot be used
interchangeably. Finally, he asserts that the rationale
used in Taylor v. City of Charlottesville, 240 Va. 367, 397
S.E.2d 832 (1990), to hold that sovereign immunity did not
bar a nuisance claim against a municipality is applicable
to the facts of the present case and defeats the
Commonwealth’s claim of sovereign immunity. We do not
agree with Maddox’s arguments.
A sidewalk such as the one at issue is, by definition,
part of a street. See Messick v. Barham, 194 Va. 382, 387,
73 S.E.2d 530, 533 (1952) (“It is generally accepted that
the word ‘street’ is all inclusive and means all that
portion of a highway set apart and designated for such use,
that is, embraces both that portion of the highway set
apart for vehicular traffic and that part set aside for
pedestrians”); McCrowell v. City of Bristol, 89 Va. 652,
662, 16 S.E. 867, 870 (1893) (“It is true that a sidewalk
along a public street is part of the street”). In
Virginia, the General Assembly “has supreme powers to open,
6
improve, repair, discontinue, or abandon public highways.”
Ord v. Fugate, 207 Va. 752, 759, 152 S.E.2d 54, 59 (1967)
(citing former Constitution of Virginia, § 63; City of
Lynchburg v. Peters, 145 Va. 1, 9, 133 S.E. 674, 677
(1926)). But, of course, “[p]ractical necessity requires
that the administration of those powers be delegated to
appropriate subordinate officials, and this the legislature
has done.” Ord, 207 Va. at 759, 152 S.E.2d at 59. The
General Assembly has delegated to the Commonwealth
Transportation Board and the Department of Transportation
authority over the supervision, management, construction,
improvement, and maintenance of public highways and roads.
See e.g. Code §§ 33.1-12, -25, -49, and –69.
The issue here is whether the alleged acts or
omissions by an agency of the Commonwealth in regard to the
sidewalk fall within the “legislative function” exception
to the Commonwealth’s waiver of immunity. Resolution of
that issue does not turn on the theory of tort liability
asserted by Maddox. In both nuisance claims, the only acts
or omissions on the part of the Commonwealth alleged by
Maddox were the failure to construct a retaining wall along
the edge of the sidewalk and/or to backfill the adjoining
yard. Thus, Maddox must rely on those allegations to
support his claims for creating and maintaining a nuisance.
7
See Hawthorn v. City of Richmond, 253 Va. 283, 289, 484
S.E.2d 603, 606 (1997). Maddox did not allege that the
sidewalk’s construction had deviated from the Project’s
plans or that the sidewalk had fallen into a state of
disrepair.
In the context of streets controlled by a
municipality, we have held that, when a municipality
selects and adopts a plan for the construction of its
public streets, it “acts in a governmental capacity.” City
of Norfolk v. Hall, 175 Va. 545, 551-52, 9 S.E.2d 356, 359
(1940). Further, determining the need for such devices as
“[t]raffic lights, blinking lights, warning signals,
roadway markings, railings, barriers, guardrails, [and]
curbings” and “the decision to install or not to install
them calls for the exercise of discretion.” Freeman v.
City of Norfolk, 221 Va. 57, 60, 266 S.E.2d 885, 886
(1980); see also Taylor, 240 Va. at 370, 397 S.E.2d at 835
(a city’s failure “to use reasonable care to install
lights, a barricade, and other safety devices, and in
designing and constructing” a particular street involved
discretionary governmental functions). In exercising that
discretion, a municipality “is performing a governmental
function and is not liable for its negligent performance of
the function.” Freeman, 221 Va. at 60, 266 S.E.2d at 886.
8
For purposes of today’s decision, 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. However, the rationale underlying our
decisions holding that a municipality’s planning and
designing its streets is a governmental function also
supports the conclusion that the design of a sidewalk by an
agency of the Commonwealth is a legislative function. In
either instance, the decision-making process by the
municipality or the state agency entails the exercise of
discretion. Deciding whether the plan and design of the
sidewalk at issue would include installing a guardrail
along the edge of the sidewalk and/or backfilling the area
adjacent to the sidewalk necessarily called for the
exercise of discretion by an agency of the Commonwealth.
It required the agency to determine whether public funds
should be expended to install those particular safety
features. Thus, the alleged acts or omissions in this case
were a legislative function.
[T]he right to regulate the use of the highways
of the State or of the streets of a city is
clearly a governmental power, and its exercise,
whether by the State or by a municipal
corporation as an agency of the State, is
legislative and discretionary; and being
legislative and discretionary, a municipal
corporation, as an arm of the State, is no more
liable for the failure to exercise the power or
9
for its improper exercise than the State itself
would be.
Jones v. City of Williamsburg, 97 Va. 722, 725, 34 S.E.
883, 883 (1900).
Our decision in Taylor v. City of Charlottesville,
does not, as asserted by Maddox, support a contrary
conclusion. There, the city had “placed no signs,
guardrails, lights, reflectors, painted lines, sidewalks,
or curbs to mark the end of [a] road” beyond which lay the
edge of a steep precipice. 240 Va. at 369, 397 S.E.2d at
834. The city’s site plan for the street reflected the
defective and dangerous condition. Id. Among other
things, the plaintiffs sought recovery for wrongful death
on the basis that the city had created and maintained a
public nuisance. Id. at 372, 397 S.E.2d at 835. We
reversed the trial court’s judgment sustaining the city’s
demurrer to the nuisance count. Id. at 374, 397 S.E.2d at
837. In reaching that conclusion, we restated the rule
“that if a municipal corporation creates or maintains a
nuisance, it is not protected by the immunity doctrine
unless (1) the condition claimed to be a nuisance is
authorized by law, and (2) the act creating or maintaining
the nuisance is performed without negligence.” Id. at 373,
10
397 S.E.2d at 836 (citing Virginia Beach v. Steel Fishing
Pier, 212 Va. 425, 427, 184 S.E.2d 749, 750-51 (1971)).
We also concluded in Taylor that the city’s reliance
upon our decision in Kellam v. School Board, 202 Va. 252,
117 S.E.2d 96 (1960), was misplaced because Kellam involved
a school board, which was a state agency and not a true
municipal corporation as was the City of Charlottesville.
Id. at 374, 397 S.E.2d at 836. In Kellam, the plaintiff
slipped and fell as she walked down the aisle of a school
auditorium. 202 Va. at 253, 117 S.E.2d at 97. She sued
the school board alleging that the board had failed to
maintain the aisle in a reasonably safe condition and that
the aisle was dangerous and constituted a nuisance. Id.
The Court held that the school board had acted in a
governmental capacity and was therefore immune from
liability for both the negligence and nuisance claims. Id.
at 257-58, 117 S.E. at 99-100.
Specifically with regard to the latter claim, we
emphasized that a school board is an agent or
instrumentality of the state, not a true municipality, and
therefore “ ‘partake[s] of the state’s sovereignty with
respect to tort liability.’ ” Id. at 259, 117 S.E.2d at
100 (quoting Bingham v. Board of Education of Ogden City,
223 P.2d 432, 436 (Utah 1950)). In other words, we did not
11
strip away the school board’s immunity derived from its
status as an arm of the state merely because the plaintiff
there sought recovery for injuries sustained as a result of
an alleged nuisance.3 Nor do we strip away the
Commonwealth’s immunity in this case merely because Maddox
sought recovery for injuries resulting from an alleged
nuisance. As already stated, the pertinent inquiry is
whether the alleged acts or omissions arose out of the
exercise of a legislative function by an agency of the
Commonwealth.
CONCLUSION
In preserving the Commonwealth’s absolute immunity for
claims arising out of its agencies’ exercise of legislative
functions, the Act does not distinguish among theories of
tort liability or “ ‘the adjectives used in the
complaint.’ ” Kellam, 202 Va. at 259, 117 S.E.2d at 100
(quoting Bingham, 223 P.2d at 436). Because the nuisance
claims in this case are predicated on the acts or omissions
of an agency of the Commonwealth in the design of the
sidewalk, those claims are barred by the “legislative
function” exception to the Commonwealth’s waiver of
3
We recognize that Kellam was decided before the
passage of the Act.
12
sovereign immunity. See Code § 8.01-195.3(2). Therefore,
we will affirm the judgment of the circuit court.
Affirmed.
13