Breeding Ex Rel. Breeding v. Hensley

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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