MADDOX EX REL. MADDOX v. Com.

• Decision Date: 23 April 2004
• Docket Number: Record No. 031064.
• Citation: 267 Va. 657,594 S.E.2d 567
• Parties: Joshua MADDOX, an Infant Who Sues by his Parents and Next Friends, Tom and Amy MADDOX v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

594 S.E.2d 567

267 Va. 657

Joshua MADDOX, an Infant Who Sues by his Parents and Next Friends, Tom and Amy MADDOX v. COMMONWEALTH of Virginia.

Record No. 031064.

Supreme Court of Virginia.

April 23, 2004.

Jayne A. Pemberton (Temple W. Cabell, Richmond; Schaffer & Cabell, on briefs), for appellant. Peter R. Messitt; Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General; Judith Williams Jagdmann, Deputy Attorney General; Edward M. Macon, Senior Assistant Attorney General; Catherine Crooks Hill, Assistant Attorney General, on brief), for appellee.

Present: LACY, KEENAN, KOONTZ, KINSER, LEMONS and AGEE, JJ.

KINSER, Justice.

Joshua Maddox ("Maddox"), an infant suing by his parents and next friends, Tom and Amy Maddox, brought an action against the Commonwealth of Virginia ("Commonwealth") for personal injuries Maddox suffered in a bicycle accident. In his motion for judgment, Maddox asserted separate claims for negligent construction and negligent maintenance of a sidewalk, and separate claims for creating a nuisance and maintaining a nuisance due to the alleged dangerous condition posed by the design of the sidewalk. The circuit court granted the Commonwealth's plea of sovereign immunity and dismissed the motion for judgment. Maddox appealed to this Court on the sole issue of whether a claim against the Commonwealth sounding in nuisance is barred under the doctrine of sovereign immunity.¹ Because we conclude that Maddox's nuisance claims are precluded by the legislative function exception to the Commonwealth's waiver of sovereign immunity in the Virginia Tort Claims Act ("the Act"), specifically Code § 8.01-195.3(2), we will affirm the judgment of the circuit court.

RELEVANT FACTS²

Maddox was injured while riding his bicycle on a public sidewalk along Washington Street in an area known as "Amelia Village" located in Amelia County. The front tire of his bicycle caught on the inside edge of the sidewalk, propelling Maddox and his bicycle into the air. There was a "sharp and sudden drop off from the sidewalk into the adjoining yard." Maddox was thrown into the yard where he landed on his left elbow, injuring it.

The sidewalk was part of a project constructed by the Commonwealth and known as "the Route 1003 State Highway Project, No. 1003-004-172-501" ("the Project"). Maddox alleged that the Commonwealth "was negligent in creating the sharp and sudden drop off from the sidewalk into the adjoining yard where the accident occurred" and in maintaining that drop off. Continuing, he asserted that the Commonwealth could have prevented the resulting dangerous condition "by constructing a retaining wall and/or adequately backfilling the adjoining area." In the negligence counts, Maddox alleged that the Commonwealth "failed to use ordinary care in both planning and constructing the changes and alterations to the area at issue" and "in the maintenance of the area."

Incorporating by reference his allegations set forth in the negligent construction and maintenance counts, Maddox further alleged that the Commonwealth created a nuisance by failing "to take measures to guard against the sharp and dangerous sidewalk ledge" and the "sharp drop off," thereby imperiling the safety of the public sidewalk. Finally, he asserted that, by allowing himself and "other members of the community to be continuously exposed to the dangerous sidewalk ledge," the Commonwealth maintained a nuisance that imperiled "the safety of the public sidewalk area at issue" and that was "dangerous and hazardous in and of itself."

ANALYSIS

This Court has previously recognized that the Commonwealth and its agencies are immune from liability for the tortious acts of their agents, employees, and servants absent express statutory or constitutional provisions waiving immunity. University of Virginia v. Carter, 267 Va. 242, 244, 591 S.E.2d 76, 78 (2004); Baumgardner v. Southwestern Virginia Mental Health Inst., 247 Va. 486, 489, 442 S.E.2d 400, 401 (1994); Virginia Elec. & Power Co. v. Hampton Redevelopment & Hous. Auth., 217 Va. 30, 32, 225 S.E.2d 364, 367 (1976); Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452, 456-57, 117 S.E.2d 685, 689 (1961); Kellam v. School Bd. of the City of Norfolk, 202 Va. 252, 254, 117 S.E.2d 96, 97 (1960); Eriksen v. Anderson, 195 Va. 655, 657, 79 S.E.2d 597, 598 (1954). The General Assembly provided an express, limited waiver of the Commonwealth's immunity in 1981 by enacting the Virginia Tort Claims Act, Code §§ 8.01-195.1 through -195.9. Because the Act is a statute in derogation of the common law, its waiver of immunity must be strictly construed. Carter, 267 Va. at 245,591 S.E.2d at 78; Melanson v. Commonwealth, 261 Va. 178, 181, 539 S.E.2d 433, 434 (2001); Baumgardner, 247 Va. at 489,442 S.E.2d at 402.

In pertinent part, the Act imposes liability on the Commonwealth for

damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth if a private person, would be liable to the claimant for such damage, loss, injury or death.

Code § 8.01-195.3. There are, however, exceptions to the Commonwealth's waiver of immunity. At issue here is the exception for "[a]ny claim based upon an act or omission of the General Assembly or district commission of any transportation district, or any member or staff thereof acting in his official capacity, or to the legislative function of any agency subject to the provisions of this article." Code § 8.01-195.3(2). In other words, the provisions of Code § 8.01-195.3(2) preserve the Commonwealth's immunity from liability in tort for any act or omission in the exercise of the legislative function of an agency of the Commonwealth.

Maddox argues that the term "legislative function" includes such activities as setting rates for public utilities, classifying criminal offenses, levying taxes, drafting statutes, and promulgating rules for governing prisons but does not encompass creating and maintaining a nuisance. In his view, the latter does not involve the determination of legislative policy. Relying on the statement that "[a] function is considered governmental if it is the exercise of an entity's political, discretionary, or legislative authority," Carter v. Chesterfield County Health Comm'n, 259 Va. 588, 591, 527 S.E.2d 783, 785 (2000), Maddox posits that "an agency's `legislative function' is a subset of its broader governmental function" and that the two terms, therefore, cannot be used interchangeably. Finally, he asserts that the rationale used in Taylor v. City of Charlottesville, 240 Va. 367, 397 S.E.2d 832 (1990), to hold that sovereign immunity did not bar a nuisance claim against a municipality is applicable to the facts of the present case and defeats the Commonwealth's claim of sovereign immunity. We do not agree with Maddox's arguments.

A sidewalk such as the one at issue is, by definition, part of a street. See Messick v. Barham, 194 Va. 382, 387, 73 S.E.2d 530, 533 (1952) ("It is generally accepted that the word `street' is all inclusive and means all that portion of a highway set apart and designated for such use, that is, embraces both that portion of the highway set apart for vehicular traffic and that part set aside for pedestrians"); McCrowell v. City of Bristol, 89 Va. 652, 662, 16 S.E. 867, 870 (1893) ("It is true that a sidewalk along a public street is part of the street"). In Virginia, the General Assembly "has supreme powers to open, improve, repair, discontinue, or abandon public highways." Ord v. Fugate, 207 Va. 752, 759, 152 S.E.2d 54, 59 (1967) (citing former Constitution of Virginia, § 63; City of Lynchburg v. Peters, 145 Va. 1, 9, 133 S.E. 674, 677 (1926)). But, of course, "[p]ractical necessity requires that the administration of those powers be delegated to appropriate subordinate officials, and this the legislature has done." Ord, 207 Va. at 759, 152 S.E.2d at 59. The General Assembly has delegated to the Commonwealth Transportation Board and the Department of Transportation authority over the supervision, management, construction, improvement, and maintenance of public highways and roads. See e.g. Code §§ 33.1-12, -25, -49, and -69. The issue here is whether the alleged acts or omissions by an agency of the Commonwealth in regard to the sidewalk fall within the "legislative function" exception to the Commonwealth's waiver of immunity. Resolution of that issue does not turn on the theory of tort liability asserted by Maddox. In both nuisance claims, the only acts or omissions on the part of the Commonwealth alleged by Maddox were the failure to construct a retaining wall along the edge of the sidewalk and/or to backfill the adjoining yard. Thus, Maddox must rely on those allegations to support his claims for creating and maintaining a nuisance. See Hawthorn v. City of Richmond, 253 Va. 283, 289, 484 S.E.2d 603, 606 (1997). Maddox did not allege that the sidewalk's construction had deviated from the Project's plans or that the sidewalk had fallen into a state of disrepair.

In the context of streets controlled by a municipality, we have held that, when a municipality selects and adopts a plan for the construction of its public streets, it "acts in a governmental capacity." City of Norfolk v. Hall, 175 Va. 545, 551-52, 9 S.E.2d 356, 359 (1940). Further, determining the need for such devices as "[t]raffic lights, blinking lights, warning signals, roadway markings, railings, barriers, guardrails, [and] curbings" and "the decision to install or not to install them calls for the exercise of discretion." Freeman v. City of Norfolk, 221 Va. 57, 60, 266 S.E.2d 885, 886 (1980); see also Taylor, 240 Va. at 370, 397 S.E.2d at 835 (a city's failure "to use reasonable care to install lights, a barricade, and other safety devices, and in designing and constructing" a particular street involved...