Lostrangio v. Laingford, Record No. 001203.

• Decision Date: 20 April 2001
• Docket Number: Record No. 001203.
• Citation: 261 Va. 495,544 S.E.2d 357
• Court: Virginia Supreme Court
• Parties: Marie F. LOSTRANGIO v. Valerie LAINGFORD, et al.

544 S.E.2d 357

261 Va. 495

Marie F. LOSTRANGIO v. Valerie LAINGFORD, et al.

Record No. 001203.

Supreme Court of Virginia.

April 20, 2001.

Michael S. Weisberg (Weisberg & Zaleski, on brief), Norfolk, for appellant. Robert W. McFarland (Bryan K. Meals; William H. Baxter, II, Richmond; McGuire-Woods, on brief), for appellee Town of Cape Charles.

No brief or argument for appellees Valerie Laingford or Cape Charles Chamber of Commerce.

Present: All the Justices.

KOONTZ, Justice.

In this appeal, we consider whether the trial court erred in sustaining a plea in bar of sovereign immunity under Code § 15.2-1809 in a personal injury lawsuit filed against a locality.¹

BACKGROUND

The case was submitted to the trial court on the pleadings. Under well settled principles, where no evidence is taken in support of a plea in bar, the trial court, and the appellate court upon review, consider solely the pleadings in resolving the issue presented. In doing so, the facts stated in the plaintiff's motion for judgment are deemed true. Tomlin v. McKenzie, 251 Va. 478, 480, 468 S.E.2d 882, 884 (1996).

On February 26, 1999, Marie F. Lostrangio filed a motion for judgment against Valerie Laingford, the Cape Charles Chamber of Commerce (the Chamber of Commerce), and the Town of Cape Charles (the Town). Relevant to the issue raised in this appeal, Lostrangio alleged that on July 4, 1997, the Town and the Chamber of Commerce jointly "sponsored and operated a July 4, 1997 celebration" within the Town. Lostrangio alleged that as part of that event, Laingford operated a petting zoo upon property owned by the Chamber of Commerce within the Town.

Lostrangio further alleged that, while in the vicinity of the petting zoo to attend the celebration, she tripped and fell over a feed bucket that negligently had been left outside the petting zoo's fence. Lostrangio alleged that as a result of her fall she suffered permanent disability, great physical pain, and mental anguish. Lostrangio sought $250,000 in damages from Laingford, the Chamber of Commerce, and the Town.

On March 15, 1999, the Town filed a plea in bar of sovereign immunity.² The Town asserted that "Lostrangio's alleged injuries and damages stem from her participation at a recreational event in the Town of Cape Charles, for which the Town enjoys sovereign immunity under [Code § 15.2-1809]." (Emphasis added). In a brief filed in support of the plea in bar, the Town asserted that "the Town of Cape Charles operated a July 4, 1997 celebration .... This `celebration' was a recreational facility as contemplated by Code § 15.2-1809." Accordingly, the Town maintained that it is entitled under Code § 15.2-1809 to immunity from liability for ordinary negligence and that Lostrangio's motion for judgment failed to allege facts that would support a claim for gross negligence.

In a responding brief, Lostrangio asserted that Code § 15.2-1809 "should be interpreted according to its terms" and that the Town's sponsoring of a "celebration" does not fall within the meaning of the language of the statute providing sovereign immunity for acts of ordinary negligence occurring at a recreational facility. She further asserted that, even if Code § 15.2-1809 does apply to the Town's sponsoring of this celebration, her motion for judgment alleged facts sufficient to support a finding of gross negligence for which there was no immunity from liability under the statute.

The trial court heard argument from the parties and, by order dated February 25, 2000, sustained the plea in bar, dismissing the Town from the suit with prejudice. Lostrangio subsequently took a voluntary nonsuit as to Laingford and the Chamber of Commerce. We awarded Lostrangio this appeal.

DISCUSSION

In pertinent part, Code § 15.2-1809 provides:

No city or town shall be liable in any civil action or proceeding for damages resulting from any injury to the person ... caused by any act or omission constituting ordinary negligence on the part of any officer or agent of such city or town in the maintenance or operation of any ... recreational facility . . . . Every such city or town shall, however, be liable in damages for the gross negligence of any of its officers or agents in the maintenance or operation of any such recreational facility....

(Emphasis added).

We have held that the statutory term "recreational facility" contained in Code § 15.2-1809 is unambiguous and means "a place for citizens' diversion and entertainment." Frazier v. City of Norfolk, 234 Va. 388, 392, 362 S.E.2d 688, 690 (1987). In prior cases where we have considered the application of this statute or its predecessor, however, the "recreational facility" in question generally has been property owned by a locality with fixed improvements maintained and operated by the locality. See, e.g., Decker v. Harlan, 260 Va. 66, 69, 531 S.E.2d 309, 310 (2000) (cityowned coliseum); Hawthorn v. City of Richmond, 253 Va. 283, 287, 484 S.E.2d 603, 605 (1997) (city-owned park containing paths designed for bicycling, running, and walking); Chapman v. City of Virginia Beach, 252 Va. 186, 189, 475 S.E.2d 798, 800 (1996) (cityowned boardwalk); Frazier, 234 Va. at 392, 362 S.E.2d at 690 (city-owned municipal auditorium).

In the present case, based upon the allegations in the motion for judgment, the Town neither owned the property on which Lostrangio was injured, nor did it own, maintain, or operate the petting zoo that was temporarily established on that property. The Town's claim of immunity, therefore, is premised solely upon its having been a joint sponsor of a recreational event, the "July 4, 1997 celebration," of which the petting zoo was a part. Accordingly, the rationale of our prior cases is inapplicable to the facts of this case, and we are required based on this record to consider whether the Town's "recreational event" was a "recreational facility" contemplated by the provisions of Code § 15.2-1809.³

As we noted above, Code § 15.2-1809 is unambiguous. Thus, we will apply the plain meaning of the words used in this statute without resort to other rules of construction. City of Winchester v. American Woodmark Corp., 250 Va. 451, 457, 464 S.E.2d 148, 152 (1995).

The plain meaning of "facility," as that word is used in Code § 15.2-1809, is something "that is built,...