City of Richmond v. Grizzard, 5745

• Decision Date: 15 June 1964
• Docket Number: No. 5745,5745
• Citation: 205 Va. 298,136 S.E.2d 827
• Parties: CITY OF RICHMOND v. WILBUR R. GRIZZARD, JR., AN INFANT, ETC. Record
• Court: Virginia Supreme Court

Page 827

136 S.E.2d 827

205 Va. 298

CITY OF RICHMOND v. WILBUR R. GRIZZARD, JR., AN INFANT, ETC.

Record No. 5745.

Supreme Court of Appeals of Virginia

June 15, 1964.

James A. Eichner, Assistant City Attorney (J. E. Drinard, City Attorney, on brief), for the plaintiff in error.

T. Wilson Hotze, Jr. (Robert J. Heberle; Joseph S. Bambacus; Heberle & Bambacus, on brief), for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

Wilbur R. Grizzard, Jr., who sued by his father and next friend, instituted this action against the city of Richmond, Virginia, to recover damages for personal injuries. In his motion for judgment, he alleged that the city of Richmond, hereinafter called city, negligently installed and maintained a fire extinguisher in a building owned by it; that while the building was occupied by the Broad Street Methodist Church, hereinafter referred to as church, and used for religious activities, he entered to attend his Sunday School class; and that he was injured when the fire extinguisher fell off the wall and struck him.

The city demurred on the grounds that there was no occupancy of the building by the city on the date of plaintiff's injury; that no invitation extended from the city to the plaintiff to enter the said building; and there was no evidence showing that it 'was not operated by the city in a governmental capacity. ' The demurrer was overruled. At the conclusion of the evidence, the court overruled the city's motion to strike; the jury returned a verdict of $1,100.00 in favor of the plaintiff; and the court overruled the motion of the city to set it aside. Objection was duly noted by the city to each ruling.

On appeal the city asks us to reverse the judgment on the grounds that in using the building for offices of its Department of Public Welfare, it was engaged in a governmental function; that plaintiff was not an invitee; and that there was not sufficient evidence of negligence to present a jury question.

For many years the building involved, adjoining the Broad Street Methodist Church in Richmond, and known as its 'annex' building, had been owned by the church. Space in the annex had been leased to the city for use by its Department of Public Welfare. In the most recent lease, dated July 1, 1959, the church leased certain spaces for the exclusive use of the city, reserved certain other spaces for the exclusive use of the church, and leased still other spaces for use by the Department of Public Welfare on week days, reserving the latter spaces for church use on Sundays.

The city acquired title to the church property in a condemnation suit. The terms and consideration for its acquisition were negotiated and fixed in a written agreement dated July 6, 1960, obviously to avoid a further contest in the legal proceedings. This agreement provided that the city should make a cash payment of $435, 604.77 to the church, and that the church should have the 'right to use and occupy' the church building and certain described areas and spaces in the annex for eighteen months, from the date of the distribution of the purchase money, for 'religious worship and other purposes' connected therewith or incident thereto, to the same extent as existed under the July 1, 1959 lease between the parties. It was further covenanted that the city would 'at its cost and expense maintain the annex in reasonably good order and repair,' and 'make all repairs thereto or replacements thereof as are necessary or required for the use of the areas and space therein at the times and for the purposes set out in the aforesaid lease.'

Wilbur R. Grizzard, Jr., a sixteen-year-old boy, was injured on the morning of Sunday May 21, 1961, while he was in the corridor or hallway in the basement floor of this building owned by the city of Richmond. He was on his way to attend his Sunday School class in the building. He said that as he moved aside to let an elderly lady pass, his 'coat sleeve barely brushed up against a fire extinguisher hung on the wall' of the corridor; and the extinguisher fell, hit and seriously injured his right foot. The corridor was customarily and necessarily used on Sundays by persons attending the church and its Sunday School, and on week days by employees of the city, going to and from offices of the Department of Public Welfare of the city on the upper floors.

Wilmer M. Stubbs, office manager for the social service bureau of the Department of Public Welfare of the city, said that some of the extinguishers in the annex building were installed in the spring of 1958 when the building was owned by the church, but he could not identify them. John M. Coffman, chief of the Division of Buildings Management for the city, said he did not know who installed the extinguishers in the annex, and could not find out from city employees. Stuart B. Nichols, who had a contract with the city for the installation and servicing of fire extinguishers in the building, testified that between November, 1960 and May 21, 1961, he or his employees had serviced three extinguishers in the church building and annex. In answer to the question if he knew who hung the fire extinguisher involved, he said: 'I don't know who actually hung the extinguisher, whether I did or someone working for me or what happened.'

David Porter, sexton for the church, testified that the extinguisher in question had fallen off the wall two or three months before the accident on a week day about five o'clock in the afternoon. He said he did not replace the extinguisher on the wall; but that when he returned to the building the next day, a week day, the extinguisher had been rehung on the wall, and the only people in the building at night were employees of the city engaged in cleaning purposes.

Examination of the portion of the premises in question after the accident showed that the fallen extinguisher had been mounted on an interior corridor wall, 'surfaced with plaster,' by means of two No. 10 screws inserted in 'Rawl plugs' anchoring a hook, and the extinguisher hung on the hook. A 'Rawl plug' was described as being made of a 'hard fiber with a lead core. ' The extinguisher was said to weigh, when filled with acid, approximately thirty-five to forty pounds. The Rawl plugs and screws were approximately one inch long. The plaster on the walls was one inch thick.

A licensed structural engineer testified that he would not consider it safe to use 'Rawl plugs' to hang a fire extinguisher of such weight on a wall 'surfaced with plaster.'

The city knew that the building was open on Sunday for those who desired to go to church services or to the Sunday School therein maintained, and that the corridor in the basement of the annex was a common hall for the use of all persons who were invited by the church to attend its religious services. The spaces reserved in the building for the church were occupied on May 21, 1961, for the purposes of the church. The church was entitled to use such spaces for the operation of its religious activities, and for the purpose of receiving any person whom it chose to admit.

In the conduct of religious activities, neither the city nor the church was engaged in a governmental function, nor did the city in granting to the church the right to occupy and use the building for religious purposes, perform a governmental function. While the city, through its Department of Public Welfare, operates in a governmental capacity, it was here using only a part of the building at specified times for such purposes. The areas occupied by the church at the time of the accident were wholly unrelated to governmental operation.

Here, as we have seen, a part of the consideration of the acquisition of the church property by the city was the right granted the church to use the building for its...