City of Virginia Beach v. Flippen

Present: All the Justices

CITY OF VIRGINIA BEACH
                               OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
v.    Record No. 950916                     March 1, 1996

EDWARD L. FLIPPEN

              FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                         John E. Clarkson, Judge


       In   this   tort   action   against    a   municipality,    we   consider

whether, absent gross negligence, the municipality is immune from

liability for personal injuries suffered by a permissive user on

privately owned recreational property for which the municipality

had limited responsibility.
       Appellee Edward L. Flippen (Flippen) owned a vacation beach

home in the Sandbridge area of the City of Virginia Beach (the

City).      Although the oceanfront and beach in the Sandbridge area

are privately owned, the property owners have permitted the public

to use the beach for recreational purposes for many years.                 When

the City approved the subdivision plat, the developers reserved

pedestrian access strips to the beach.               These access strips have

never been conveyed to the City by fee transfer or easement.                But

since the time of the subdivision's creation and consistent with

the reservation in the plat, the City has maintained these access

strips to the beach for pedestrian ingress and egress.

       Concern for beach erosion during the 1970s and 1980s prompted

the   Sandbridge    property    owners   to   seek    permission   to   build   a

series of bulkheads along Sandbridge beach.             The City approved the

construction of the bulkheads with the understanding that the

property owners would construct stairways over the bulkheads which
the City would thereafter maintain to preserve public access to

the beach.         In addition to maintaining the access strips and

stairways, the City provides and maintains refuse receptacles,

information signs, and sand fences at the access points to the

stairways.             The   City       also   provides        and       maintains       refuse

receptacles on the beach itself during the warmer months.

        On December 11-13, 1992, the City was struck by a severe

Northeastern storm.             Extensive damage occurred to several of the

stairways over the Sandbridge bulkheads.                           City workers surveyed

this damage on December 14 and 15 and blocked the entrances to

noticeably damaged stairways with lumber and warning tape.
        On the evening of December 31, 1992, Flippen was walking his

dog along Sandfiddler Road adjacent to the bulkheads.                                Flippen

mounted      a   stairway       which    was   not       blocked    by    lumber    or   tape,

crossed the bulkhead and descended the stairway toward the beach.

Storm damage to this stairway had resulted in a single tread

missing from the first flight of stairs on the beach side of the

bulkhead.        Flippen fell through the gap in the stairs to the beach

below and suffered personal injuries.

        By motion for judgment filed March 30, 1993 in the Circuit
                                                     *
Court       of   the     City     of     Norfolk,         Flippen     sought       $1,000,000

compensatory        damages,           alleging      that     the        City   negligently

maintained the stairway.               The City defended on the ground that its

        *
      Prior to trial, the City objected to the propriety of
Norfolk as a venue for this action. The City assigned error to
the trial court's ruling approving the venue. Because our
resolution of the appeal moots the question, we express no
opinion on this issue.
negligence, if any, did not amount to gross negligence, and it was

thus immune under one or more statutory provisions or under a

common law theory of sovereign immunity.   The trial court rejected

these legal theories and permitted the case to be submitted to the

jury which, by special verdict, found that the City was guilty of

simple negligence and awarded Flippen damages in the amount of

$246,280.90.   We awarded the City an appeal.

     The City contends that it is immune from liability under the

provisions of Code § 29.1-509(B).   In pertinent part, that statute

provides:
          A landowner shall owe no duty of care to keep land
     or premises safe for entry or use by others for . . .
     recreational use . . . . No landowner shall be required
     to give any warning of hazardous conditions or uses of,
     structures on, or activities on such land or premises to
     any person entering on the land or premises for such
     purposes . . . .


Code § 29.1-509(A) defines the term "landowner" as "the legal

title holder, lessee, occupant or any other person in control of

land or premises."   (Emphasis added.)

     Initially, we note that Flippen's activity as a recreational

use of the stairway in question is not an issue in this appeal.

Additionally, there is no dispute that following the construction

of the stairway by the property owners, the City alone assumed

responsibility for the maintenance of the stairway and provided

additional services to enhance the aesthetic appearance of the

adjoining public access ways.   The evidence thus substantiates the

City's claim that it was in control of the stairway at the time of

Flippen's recreational use of it.    Accordingly, the City asserts

that it comes within the definition of a landowner in that it was
"in control of [the] land or premises" as contemplated by Code

§ 29.1-509.

       In    response,     Flippen     contends          that     Code § 29.1-509      is

inapplicable to municipal corporations.                    Rather, he asserts that

the legislature intended the statute to extend immunity only to

private landowners, having provided for recreational use immunity

for    municipalities          elsewhere.         See     Code    § 15.1-291.          Our

resolution of this issue centers on whether, on the particular

facts of this case, the City is included within the term "any

other person" as used in Code § 29.1-509(A).
       Municipal corporations have a dual identity, existing both as

a body politic and a body corporate.                     In the latter identity, a

municipal corporation may be a "person" just as any corporation or

other legal entity is a person.              Code § 1-13.19; see also Hanbury

v. Commonwealth, 203 Va. 182, 187, 122 S.E.2d 911, 914 (1961).                         We

further recognize that, in certain instances, the legislature has

expressly       excluded       municipalities          from      coming     within     the

definition of the term "person".                   See, e.g., Code §§ 7.1-12 &

8.01-636.       When, as here, a statute contains no express definition

of a term, the general rule of statutory construction is to infer

the intent of our legislature from the language and "the plain

meaning of the words."           Marsh v. City of Richmond, 234 Va. 4, 11,

360    S.E.2d    163,    167    (1987);     see   also     City    of     Portsmouth   v.

Daniels, 157 Va. 614, 618, 162 S.E. 324, 325 (1932)(construing

term    "any     person"    with     respect      to     application       of   Workers'

Compensation Act to municipal corporations).

       The   clear      legislative    intent       of    Code     § 29.1-509    is    to
encourage the opening of private land to public recreational use.

Flippen contends that the City's maintenance of this stairway is

comparable to its maintenance of sidewalks, suggesting that the

City's actions are not motivated by the statute.                This contention

is without merit.    The maintenance of sidewalks is a proprietary,

not a governmental, function of a municipal corporation, City of

Norfolk v. Hall, 175 Va. 545, 551-52, 9 S.E.2d 356, 359 (1940),

making   sidewalk   maintenance    an   act   of   the    corporate     entity.

Moreover, the intended use of the stairway in question is clearly

to provide access to the recreational beach.              The City's actions

in providing and maintaining public access over private land for

recreational purposes is entirely consistent with the purpose of

Code § 29.1-509 and the conclusion that the legislature intended a

broad interpretation of the definition of the term "landowner"

contained therein.     Accordingly, we see no logical reason, under

the specific facts of this case, to exclude the City from the

definition of landowner found in that statute.
      We hold that the City is a "person in control of [the] land

or premises" as contemplated by Code § 29.1-509 and is entitled to

the   immunity   extended   by   that   statute    for    the    activities   it

undertook to provide public access to the beach adjacent to the

stairway.   Having reached this conclusion, we need not address the

City's additional claims of immunity under Code § 15.1-291 and the

common law doctrine of sovereign immunity.               Similarly, an issue

raised on cross-error is rendered moot by our decision reversing

the trial court disposition.

      The judgment of the circuit court will be reversed and final
judgment will be entered for the City.

                                         Reversed and final judgment.