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HAWTHORN v CITY OF RICHMOND (59875)


HAWTHORN v CITY OF RICHMOND


April 18, 1997
Record No. 960261

BRIAN K. HAWTHORN

v.

CITY OF RICHMOND

Randall G. Johnson, Judge
Present: All the Justices

OPINION BY CHIEF JUSTICE HARRY L. CARRICO
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND


This is an appeal in a personal injury action brought by Brian
K. Hawthorn (Hawthorn) against the City of Richmond (the City).
Because the case was decided below on demurrer, we accept as true
the well-pleaded facts set forth in Hawthorn’s motion for
judgment. Russo v. White, 241 Va. 23, 24, 400 S.E.2d 160, 161
(1991).

The City owns and operates a park on Belle Island in the James
River containing paths designed for bicycling, running, and
walking. One of the paths slopes downward and, as it emerges from
a wooded area, curves abruptly and sharply to the left along the
edge of a steep cliff. On August 8, 1993, Hawthorn rode his
bicycle along this path, fell over the cliff, and injured
himself. At the time of the accident, no barrier or guardrail
existed to prevent Hawthorn from plummeting over the cliff, and
no signs were posted warning of danger.

Hawthorn’s motion for judgment contained two counts. In Count
I, entitled "Negligence and Nuisance," Hawthorn alleged
that the City was negligent in failing "to use reasonable
care to maintain the path in a reasonably safe condition for
public use or, in the alternative, to warn of any dangers which
might exist upon the path." Hawthorn also alleged in Count I
that the path was "dangerous, faulty, defective and
hazardous in itself." In Count II, entitled "Gross
Negligence," Hawthorn alleged that the City’s acts were
"so willful and wanton as to evince a conscious disregard of
the rights of others, as well as malicious conduct."

The City demurred on the ground that, at most, the motion for
judgment stated a cause of action for simple or ordinary
negligence and that Code §15.1-291 grants a municipality
immunity from all liability for damages resulting from injury
caused by any act or omission constituting simple or ordinary
negligence in the maintenance or operation of a park or other
recreational facility. The trial court sustained the demurrer
with respect to Count I and dismissed that count but overruled
the demurrer with respect to Count II. Later, the court dismissed
Count II on Hawthorn’s own motion. We awarded Hawthorn an appeal
from the final order dismissing Count I.

In pertinent part, Code § 15.1-291 provides as follows:

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

The immunity created by this section is hereby conferred upon
counties in addition to, and not limiting on, other immunity
existing at common law or by statute.

Hawthorn contends that this Court "has long recognized a
municipal corporation has no immunity for creating or maintaining
a nuisance," yet the trial court "reversed over one
hundred years of common law holding cities have no immunity for
negligent creation of nuisances in any context." Hawthorn
complains the trial court incorrectly interpreted Code § 15.1-291
"to grant nuisance immunity in the operation of recreational
facilities, even though the statute fails to mention causes of
action for nuisance and refers only to acts or omissions caused
by simple or ordinary negligence."

Hawthorn argues that in sustaining the City’s demurrer with
respect to Count I, the trial court improperly emphasized the
portion of the statutory language relating to "injury . . .
caused by . . . negligence" and "essentially treated
[his] cause of action for nuisance as a cause of action for
negligence." He seeks to recover, Hawthorn says, not for an
injury caused by negligence but for one caused by "a
condition hazardous in itself — i.e., a nuisance," and Code
§ 15.1-291 "limits immunity to injuries caused by acts
constituting simple or ordinary negligence and does not apply to
injuries caused by a nuisance."

Hawthorn acknowledges that when a municipality is authorized
by law to perform a particular act, it cannot be held liable for
maintaining or operating a nuisance unless the act is negligently
performed. City of Newport News v. Hertzler, 216 Va. 587, 595,
221 S.E.2d 146, 151 (1976);[1] City of Virginia Beach v. Virginia Beach Steel
Fishing Pier, Inc., 212 Va. 425, 427, 184 S.E.2d 749, 750-51
(1971). Hawthorn does not question the authority of the City to
maintain and operate the park, but he argues that negligence and
nuisance are distinct causes of action and that reliance on
negligent acts does not transform a nuisance cause of action into
a negligence cause of action. "Likewise," Hawthorn
opines, "the fact negligent acts created the alleged
nuisance here does not mean § 15.1-291 applies to an injury
caused by a nuisance."[2]

We agree with Hawthorn that, ordinarily, a municipal
corporation has no immunity from liability for injury caused by a
nuisance. City of Portsmouth v. Weiss, 145 Va. 94, 109, 133 S.E.
781, 786 (1926); see Chalkley v. City of Richmond, 88 Va. 402,
409, 14 S.E. 339, 341-42 (1891). We are of opinion, however, that
in the enactment of Code § 15.1-291, the General Assembly has
created a clear exception to the no-immunity rule in nuisance
actions against municipalities so far as recreational facilities
are concerned and thus has abrogated the common law to that
extent. See Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d
301, 302 (1988).

We also agree with Hawthorn that nuisance and negligence are
distinct legal concepts. Chapman v. City of Virginia Beach, 252
Va. 186, 192, 475 S.E.2d 798, 802 (1996).[3] But it does not
obliterate the distinction between the two concepts to say, as it
must be said, that negligence is an essential element or
component of nuisance when one seeks to hold a municipality
liable for maintaining or operating a nuisance.

We further agree with Hawthorn that Code § 15.1-291 does not
mention a cause of action for nuisance by name. However, the
statute states that the immunity granted therein applies in
"any civil action or proceeding," and this language is
broad enough to encompass actions for both negligence and
nuisance.

In this case, the negligence representing the essential
element or component of Hawthorn’s nuisance cause of action is
the City’s failure to provide a barrier or guardrail to prevent
him from plummeting over the cliff and the failure to post signs
warning of the presence of danger. It was these very acts or
omissions that caused Hawthorn’s injury, and since they were
pleaded in Count I as constituting only simple or ordinary
negligence, the City is entitled to the grant of immunity
provided by Code § 15.1-291.

Hawthorn argues, however, that it is improper to interpret
Code § 15.1-291 as applicable to any civil action "’in which
negligence is a component or element.’" Hawthorn says that
"the mere fact negligence is an element of a cause of action
for nuisance against a city should not affect the application of
§15.1-291 because, on its face, it applies to damages caused by
negligence alone and does not refer to a cause of action for
nuisance." Hawthorn submits that if the General Assembly
"had intended to include actions in which negligence was
merely a component or element . . . it could have included those
actions under the statute." The General Assembly did not
make that inclusion, Hawthorn submits, "because the purpose
of the statute was merely to create a higher standard of proof in
negligence cases, not in nuisance cases."

In Frazier v. City of Norfolk, 234 Va. 388, 362 S.E.2d 688
(1987), we discussed the General Assembly’s intent in enacting
what is now Code § 15.1-291. Although Frazier did not involve a
cause of action for nuisance, what we said there concerning the
Code section applies with equal force here:

The statute was enacted shortly after this Court decided
Hoggard v. City of Richmond, 172 Va. 145, 200 S.E. 610 (1939).
There, in a 4-3 decision imposing tort liability upon a city, the
Court held that a municipality acted in a ministerial and not
governmental capacity when operating a bathing and swimming pool,
although it did not derive any pecuniary advantage from the
activity. . . .

[W]e conclude that the General Assembly intended to limit the
civil liability of municipalities in the maintenance and
operation of [any] recreational facilities to cases of gross or
wanton negligence. That is what the legislature said in plain
terms [and] there is no necessity to resort to maxims of
statutory construction or to employ other devices to ascertain
legislative intent.

234 Va. at 391, 362 S.E.2d at 690.

Finally, Hawthorn contends that in his motion for judgment, he
alleged a cause of action for the "negligent creation of a
nuisance, in addition to the [negligent] maintenance and
operation thereof," and that Code § 15.1-291 "grants
immunity only for maintenance and operation of recreation
facilities, not for the negligent creation of those
facilities." Hence, Hawthorn concludes, his claim for
negligent creation "falls outside the statute’s parameters
of immunity."

It is not at all certain that Hawthorn’s motion for judgment
alleges a cause of action for the negligent creation of a
nuisance, separate and apart from a cause of action for the
negligent maintenance and operation of a nuisance. Only a terse
statement in the concluding paragraph of Count I that he was
injured "[a]s a proximate result of the negligence of the
City in creating, maintaining, and opening the path to
bicyclists," indicates that negligent creation is included
as a basis for recovery.

Be that as it may, we will assume for the purposes of this
discussion that the motion for judgment does state a cause of
action for negligent creation. The fact remains that the only
acts or omissions on the part of the City that Hawthorn alleges
in his motion for judgment are the failure to provide a barrier
or guardrail to prevent him from plummeting over the cliff and
the failure to post signs warning of danger. Therefore, it is
upon these acts or omissions that Hawthorn must rely to support a
cause of action for the negligent creation of a nuisance. But
they are the identical acts or omissions he must rely upon to
support a cause of action for negligent maintenance or operation
of a nuisance, for which, as demonstrated earlier in this
opinion, the City is immune from liability.

We will not presume that when the General Assembly enacted
Code § 15.1-291, it intended in circumstances like those present
here that immunity would be granted with one hand and taken away
with the other. Indeed, such a presumption would be improper in
light of our conclusion in Frazier that the General Assembly
intended in its enactment of Code § 15.1-291 "to limit the
civil liability of municipalities in the maintenance and
operation of [any] recreational facilities to cases of gross or
wanton negligence." 234 Va. at 391, 362 S.E.2d at 690. It
would thwart this legislative intent to say now that
municipalities, when creating recreational facilities, have no
immunity from liability for the identical acts or omissions from
which they would be immune when maintaining or operating the same
facilities. Accordingly, we reject Hawthorn’s argument that his
claim for negligent creation "falls outside the statute’s
parameters of immunity."

For the reasons assigned, we will affirm the judgment of the
trial court.

Affirmed.

JUSTICE STEPHENSON, with whom JUSTICE HASSELL joins,
dissenting.

I respectfully dissent.

It is well established, as the majority acknowledges, that
actions based upon negligence and actions based upon negligently
creating and maintaining a public nuisance are separate and
distinct causes of action. Chapman v. City of Virginia Beach, 252
Va. 186, 192, 475 S.E.2d 798, 802 (1996); Taylor v. City of
Charlottesville, 240 Va. 367, 372-74, 397 S.E.2d 832, 835-37
(1990). Indeed, as Chief Justice Carrico said in Finley, Inc. v.
Waddell, 207 Va. 602, 610, 151 S.E.2d 347, 353 (1966),
"[t]he torts of nuisance and negligence are distinct and
differ in their nature and consequences."

It is equally well established that a municipal corporation is
immune from liability for claims caused by ordinary negligence if
it is engaged in a governmental function; however, a municipal
corporation is not immune from liability for negligence when it
performs a propriety function. Taylor, 240 Va. at 370, 397 S.E.2d
at 834. Also, a municipal corporation ordinarily is not immune
from liability for negligently creating and maintaining a public
nuisance whether it is performing either a governmental or a
proprietary function. Id. at 373, 397 S.E.2d at 836.

Statutes in derogation of the common law are strictly
construed, and the common law will not be considered changed by
statute unless the legislative intent is clearly evident.
Moreover, there is a presumption that no change in the common law
is intended by the legislature; therefore, any change in the
common-law rule is limited to what is expressly stated in the
statute or what is necessarily implied therefrom. Indeed,
"[w]hen an enactment does not encompass the entire subject
covered by the common law, it abrogates the common-law rule only
to the extent that its terms are directly and irreconcilably
opposed to the rule." Boyd v. Commonwealth, 236 Va. 346,
349, 374 S.E.2d 301, 302 (1988). Additionally, a court must
presume that the General Assembly acted with full knowledge of
the strict construction that must be given to a statute that is
in derogation of the common law. Hannabass v. Ryan, 164 Va. 519,
525, 180 S.E. 416, 418 (1935).

Code § 15.1-291 is in derogation of the common law, and the
issue in the present case is whether the statute, when strictly
construed, directly and irreconcilably changes the common law.
Code § 15.1-291, in clear, plain language, limits immunity to
injuries "caused by any act or omission constituting simple
or ordinary negligence." (Emphasis added.) The statute makes
no mention, however, of immunity from liability for nuisance,
although the General Assembly is presumed to have known that
negligence and nuisance are separate and distinct causes of
action.

The majority, focusing on only a portion of Code § 15.1-291,
states that the statute grants immunity in "`any civil
action or proceeding’" and concludes that "this
language is broad enough to encompass actions for both negligence
and nuisance." I would agree with that conclusion if that
were all the section states. As previously noted, however, the
statute further states that the immunity granted is limited to
injuries caused by simple or ordinary negligence. In enacting
Code § 15.1-291, the General Assembly could have granted immunity
from liability for injuries caused by the creation and
maintenance of a nuisance. It did not do so, and I submit that
this Court also should not do so.

FOOTNOTES:

[1] On brief, Hawthorn
says that this Court failed to apply Code § 15.1-291 in Hertzler
and that this failure suggests "the statute does not grant
immunity from liability for creating a nuisance." However,
Code § 15.1-291 was not in issue in Hertzler; it was not cited in
the briefs filed by the parties in that case and was not
mentioned in the opinion.

[2] In
support of his argument in the text, Hawthorn cites Taylor v.
City of Charlottesville, 240 Va. 367, 397 S.E.2d 832 (1990). But
Taylor involved a nuisance in the form of a dangerous condition
adjacent to a public highway, not in a recreational facility, and
the case was decided on common law principles, not under a
legislative provision similar to Code § 15.1-291. Hence, Taylor
is inapposite.

[3] Hawthorn
states on brief that this Court’s guidance in Chapman "on
the distinction between a cause of action for negligence and a
cause of action for nuisance casts light on the issue at
bar." However, in Chapman, we did not address the
"issue at bar" because it was "not [then] ripe for
resolution." 252 Va. at 193, 475 S.E.2d at 802.

 

 

 

 

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