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.