Present: All the Justices
MELINDA BREEDING, AN INFANT BY
HER NEXT FRIEND AND MOTHER,
LINDA BREEDING, ET AL.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 982449 September 17, 1999
WILLIAM EDWARD HENSLEY, ET AL.
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Nicholas E. Persin, Judge Designate
Generally, this case is about the law of public nuisances.
Specifically, the case is about how a demurrer to an amended
motion for judgment must be considered. Because of the
disposition we make of the demurrer issue, we must also consider
the application of Code § 8.01-222, which deals with notice to
be given cities and towns of claims for damages for negligence.
In 1993, appellant Melinda Breeding, an infant suing by her
mother as next friend, filed this action against appellees
William Edward Hensley and the Town of Lebanon. In a two-count
motion for judgment, the plaintiff alleged she was injured on
September 13, 1991 when she collided with a portion of a trash
dumpster while riding her bicycle.
In Count I, she alleged that the Town, acting through its
employee Hensley, while collecting garbage, had negligently
placed the dumpster so that it protruded into the right of way
of the public street upon which she was travelling. In Count
II, incorporating the allegations of Count I, she alleged the
obstruction of the street was a public nuisance. She further
alleged that, as a proximate result of the defendants' wrongful
acts, she was entitled to recover damages.
Subsequently, the trial court ruled that collection of
garbage by a municipality is a governmental function. Applying
the doctrine of municipal immunity, the court dismissed Count I
of the motion for judgment that was based upon ordinary
negligence. At that time, the court refused to dismiss the
nuisance count.
Later, the infant's mother, appellant Linda Breeding, was
added as a party plaintiff. She sought recovery of medical
expenses incurred and to be incurred in the future on behalf of
the child.
Subsequently, the plaintiffs filed an amended Count II to
the motion for judgment. Following discovery, the infant
plaintiff later filed a second motion for judgment, naming the
Town and appellees Giles Wolfe and Paul Hess as defendants. The
plaintiff alleged Wolfe and Hess were Town employees who were
also involved in placing the dumpster at the site in question.
The trial court then ordered that the second motion for judgment
be consolidated with the original motion for judgment and that
the actions proceed as one case.
Following argument of counsel during two hearings in 1998,
the trial court sustained demurrers and a special plea that had
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been filed by the defendants. Upon the demurrers, the court
ruled that the plaintiffs' allegations of nuisance in amended
Count II of the original motion for judgment and in the second
motion for judgment were "deficient." Upon the special plea,
the court ruled that notice to the Town of the accident was
"defective." We awarded plaintiffs this appeal from an August
1998 order dismissing the consolidated cases.
Before embarking upon an analysis of the issues in this
appeal, a comment on the state of the appellate record is
necessary. The litigation has been pending for more than six
years. The manuscript record of the two cases contains 913
pages, excluding exhibits, reports of experts, and transcripts
of depositions and hearings. The record contains extensive
discovery material and affidavits of witnesses. We mention this
glut of information in a matter decided on the pleadings to
point up the fact that the record contains a profusion of facts
that are not included in the plaintiffs' motions for judgment.
Yet the parties on brief argue the issues as if all the facts
outside the pleadings are properly before this Court; they are
not.
Therefore, we must focus upon only the pleadings' factual
allegations. "A demurrer admits the truth of all material facts
properly pleaded. Under this rule, the facts admitted are those
expressly alleged, those which fairly can be viewed as impliedly
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alleged, and those which may be fairly and justly inferred from
the facts alleged." Rosillo v. Winters, 235 Va. 268, 270, 367
S.E.2d 717, 717 (1988).
In the plaintiffs' amended Count II, all the factual
allegations from the original Count II (which expressly
incorporated by reference most of the factual allegations of
original Count I) were not included. Under these circumstances,
another rule impacting consideration of demurrers becomes
pertinent. When an amended motion for judgment, or amended
count thereof, is filed and a comparison of the original and
amended pleading shows that the amended motion for judgment, or
amended count, was intended as a substitute for the original,
the case stands as though the original had never been filed, so
far as it relates to the statement of facts. Trotter v. E.I.
Dupont de Nemours and Co., 124 Va. 680, 682-83, 98 S.E. 621, 622
(1919). See Washington S. Ry. Co. v. Cheshire, 109 Va. 741,
743, 65 S.E. 27, 28 (1909).
In the present case, due to the variance between the
respective allegations, it is apparent that the plaintiffs
intended amended Count II as a substitute for original Count II.
Hence, in order to determine whether the allegations of public
nuisance are sufficient to withstand demurrer, we shall examine
only the facts asserted in amended Count II and in the second
motion for judgment.
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Because the demurrer admits all well-pleaded facts, we
shall recite them as if they are true. A public right of way
named Gilmer Avenue Extension is located within the Town's
limits. Real estate used and maintained by the Russell County
Department of Social Services adjoins the right of way. The
Department owned a large trash dumpster that was located on the
edge of its property adjoining Gilmer Avenue.
Defendants Hensley, Wolfe, and Hess, in their capacities as
employees of the Town, by use of a garbage truck, "placed the
aforesaid dumpster, in the position it was located on the
evening of September 13, 1991." This allegation is susceptible
to two meanings: It could mean that the dumpster was placed
there on September 13 or it could mean that the dumpster had
been placed there at some unspecified time before September 13
and had remained there to the time of the accident. On
demurrer, the latter inference must be accepted as fact because
it is more favorable to plaintiffs by showing a degree of
permanency to the condition. It is noted that the original
motion for judgment, now abandoned, alleges Hensley placed the
dumpster at the site on September 13.
Continuing, the location of the dumpster within the right
of way caused a dangerous and hazardous condition not authorized
by law with respect to the lawful use of Gilmer Avenue. Before
and on September 13, the defendants allowed the dumpster to
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extend into the street where it obstructed and impeded the
public's entitlement to the full and free use of all the
territory embraced within the street.
In the alternative, the plaintiffs alleged that, if the
condition described was authorized by law, the conduct of the
defendants in placing the dumpster where it was located on
September 13 constituted negligence on their part.
In the "evening" of September 13, the infant plaintiff,
while riding her bicycle in a westerly direction on Gilmer
Avenue, physically struck a portion of the dumpster, which
extended into the right of way. As a result, the plaintiffs
were damaged.
The first question on appeal is whether the allegations of
amended Count II and of the second motion for judgment
sufficiently set forth a public nuisance claim. We hold that
the allegations are sufficient to withstand demurrer.
Any unauthorized obstruction that unnecessarily impedes the
lawful use of a public street is a public nuisance at common
law. City of Richmond v. Smith, 101 Va. 161, 166, 43 S.E. 345,
346 (1903). But a public nuisance is restricted to a condition
that is "dangerous and hazardous in itself," Taylor v. City of
Charlottesville, 240 Va. 367, 372, 397 S.E.2d 832, 835 (1990).
It must prevail "at all times and under all circumstances,"
Price v. Travis, 149 Va. 536, 547, 140 S.E. 644, 647 (1927), but
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not in "absolute perpetuity." Smith, 101 Va. at 168, 43 S.E. at
347. More than sporadic or isolated conditions must be shown;
the interference must be "substantial." City of Newport News v.
Hertzler, 216 Va. 587, 594, 221 S.E.2d 146, 151 (1976). Yet,
any unauthorized use of a public highway that is extensive and
continues long enough to be unreasonable may amount to a public
nuisance. Smith, 101 Va. at 168, 43 S.E. at 347.
In the present case, the plaintiffs' bare allegations of
fact, considered according to demurrer rules, support the
foregoing elements of a public nuisance. However, the pleadings
leave many factual questions unanswered. For example, the size
and extent of the encroachment into the public way will be
relevant upon the elements of unnecessary impediment,
dangerousness, and hazardousness. Also, the question of
permanency and whether the condition was substantial must be the
subject of elaboration when the evidence is presented. These
are just a few of the matters that need to be addressed if the
plaintiffs are to recover. But that does not mean that the
plaintiffs are precluded at this stage of the proceeding from
going forward with their case. Thus, we hold that the trial
court erred in short circuiting the litigation upon demurrer.
The other question on appeal is whether the trial court
erred in applying the notice requirements of Code § 8.01-222 to
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these actions and dismissing the actions against the
municipality as well as its employees.
As pertinent, Code § 8.01-222 provides:
"No action shall be maintained against any city or
town for injury to any person . . . alleged to have
been sustained by reason of the negligence of the city
or town, or any officer, agent or employee thereof,
unless a written statement by the claimant, his agent,
attorney or representative of the nature of the claim
and of the time and place at which the injury is
alleged to have occurred or been received shall have
been filed with the city attorney or town attorney
. . . within six months after such cause of action
shall have accrued. . . ."
The language of the statute is clear and comprehensive; its
provisions are mandatory, but not jurisdictional. Town of Crewe
v. Marler, 228 Va. 109, 112, 319 S.E.2d 748, 749 (1984).
There is no dispute that an attorney for the infant
plaintiff, within about four months of the September 13, 1991
accident, notified the Lebanon Town Attorney that the accident
occurred on September 25, 1991. Recognizing that "the date of
Melinda's injury was incorrectly cited," the plaintiffs argue
that the statute is inapplicable to a claim of nuisance. They
contend that "it applies only to injuries sustained by reason of
negligence. Nuisance and Negligence are entirely different
causes of action." Given the allegations in these cases, we
disagree with the plaintiffs.
"[W]hen a municipality is authorized by law to perform a
particular act, it cannot be held liable for maintaining or
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operating a nuisance unless the act is negligently performed."
Hawthorn v. City of Richmond, 253 Va. 283, 286, 484 S.E.2d 603,
605 (1997). Collection and disposal by a municipality of
garbage and other refuse, including, as here, repositioning a
trash dumpster, is authorized by law, former Code § 15.1-857
(now § 15.2-927), contrary to the plaintiffs' conclusion in
their pleadings that the defendants' acts were unlawful.
While nuisance and negligence are distinct legal concepts,
Chapman v. City of Virginia Beach, 252 Va. 186, 192, 475 S.E.2d
798, 802 (1996), it does not obliterate the distinction between
them to say that negligence is an essential element or component
of nuisance when, as here, one seeks to hold a municipality
liable for maintaining a nuisance when performing an act
authorized by law. See Hawthorn, 253 Va. at 287, 484 S.E.2d at
605. In other words, under these allegations, the Town is
liable for maintaining a public nuisance only if the plaintiffs
can establish the Town employees were negligent. This case is
unlike City of Portsmouth v. Weiss, 145 Va. 94, 133 S.E. 781
(1926), relied upon by the plaintiffs, in which there was a
claim of private nuisance as the result of an affirmative wrong
done by the municipality and the plaintiff was not required to
establish negligence.
Therefore, even though Code § 8.01-222 does not employ the
term "nuisance," but provides for notice of injuries sustained
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by reason of "negligence," we conclude that the statute applies
to this nuisance claim in which negligence is an essential
element. Thus, we hold the trial court correctly sustained the
special plea dismissing the Town from the actions.
The plaintiffs also argue the trial court erred in
dismissing the actions against the Town employees, Hensley,
Wolfe, and Hess. The plaintiffs contend the express language of
the statute applies only to actions against municipalities. We
agree.
Statutes requiring notice as a condition precedent to
making a claim against a municipality are in derogation of the
common law. They should be strictly construed when determining
the persons to which they apply and not be extended by
implication beyond their own terms. See Weiss, 145 at 109-10,
133 S.E. at 786. *
Plainly, the express language of the statute does not
include actions against the employees or agents of the
municipality. The statute clearly provides that no action shall
be maintained against "any city or town."
*
In Marler, we repeated a statement from Bowles v. City of
Richmond, 147 Va. 720, 727, 129 S.E. 489, 490 (1925), that the
notice statute should be construed liberally and substantial
compliance with its terms is sufficient. 228 Va. at 112, 319
S.E.2d at 749. But the context in which the liberal
construction statement was made dealt with substantial
compliance by the claimant with the requirements for the notice
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And, we reject the defendants' contention that Halberstam
v. Commonwealth, 251 Va. 248, 253 n.2, 467 S.E.2d 783, 786 n.2
(1996), a case interpreting the notice provisions of the
Virginia Tort Claims Act, compels a conclusion that the terms of
§ 8.01-222 should be extended by implication to apply to the
Town employees. Halberstam involved a waiver of sovereign
immunity and a claim against an agency of the Commonwealth, not
an employee.
Consequently, the portion of the judgment below that
dismissed the Town as a defendant will be affirmed, the portion
that dismissed the individuals as defendants will be reversed,
and the case will be remanded for further proceedings on amended
Count II and the second motion for judgment against the
individual defendants.
Affirmed in part,
reversed in part,
and remanded.
and not, as here, with the threshold question of to whom the
statute applies.
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