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BREEDING, et al. HENSLEY, et al.

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BREEDING, et al.


HENSLEY, et al.

September 17, 1999

Record No. 982449







Nicholas E. Persin, Judge Designate

Present: All the Justices


Generally, this case is about the law of public
nuisances. Specifically, the case is about how a demurrer to an
amended motion for judgment must be considered. Because of the
disposition we make of the demurrer issue, we must also consider
the application of Code ? 8.01-222, which deals with notice
to be given cities and towns of claims for damages for

In 1993, appellant Melinda Breeding, an infant
suing by her mother as next friend, filed this action against
appellees William Edward Hensley and the Town of Lebanon. In a
two-count motion for judgment, the plaintiff alleged she was
injured on September 13, 1991 when she collided with a portion of
a trash dumpster while riding her bicycle.

In Count I, she alleged that the Town, acting
through its employee Hensley, while collecting garbage, had
negligently placed the dumpster so that it protruded into the
right of way of the public street upon which she was travelling.
In Count II, incorporating the allegations of Count I, she
alleged the obstruction of the street was a public nuisance. She
further alleged that, as a proximate result of the defendants’
wrongful acts, she was entitled to recover damages.

Subsequently, the trial court ruled that
collection of garbage by a municipality is a governmental
function. Applying the doctrine of municipal immunity, the court
dismissed Count I of the motion for judgment that was based upon
ordinary negligence. At that time, the court refused to dismiss
the nuisance count.

Later, the infant’s mother, appellant Linda
Breeding, was added as a party plaintiff. She sought recovery of
medical expenses incurred and to be incurred in the future on
behalf of the child.

Subsequently, the plaintiffs filed an amended
Count II to the motion for judgment. Following discovery, the
infant plaintiff later filed a second motion for judgment, naming
the Town and appellees Giles Wolfe and Paul Hess as defendants.
The plaintiff alleged Wolfe and Hess were Town employees who were
also involved in placing the dumpster at the site in question.
The trial court then ordered that the second motion for judgment
be consolidated with the original motion for judgment and that
the actions proceed as one case.

Following argument of counsel during two
hearings in 1998, the trial court sustained demurrers and a
special plea that had been filed by the defendants. Upon the
demurrers, the court ruled that the plaintiffs’ allegations of
nuisance in amended Count II of the original motion for judgment
and in the second motion for judgment were "deficient."
Upon the special plea, the court ruled that notice to the Town of
the accident was "defective." We awarded plaintiffs
this appeal from an August 1998 order dismissing the consolidated

Before embarking upon an analysis of the issues
in this appeal, a comment on the state of the appellate record is
necessary. The litigation has been pending for more than six
years. The manuscript record of the two cases contains 913 pages,
excluding exhibits, reports of experts, and transcripts of
depositions and hearings. The record contains extensive discovery
material and affidavits of witnesses. We mention this glut of
information in a matter decided on the pleadings to point up the
fact that the record contains a profusion of facts that are not
included in the plaintiffs’ motions for judgment. Yet the parties
on brief argue the issues as if all the facts outside the
pleadings are properly before this Court; they are not.

Therefore, we must focus upon only the
pleadings’ factual allegations. "A demurrer admits the truth
of all material facts properly pleaded. Under this rule, the
facts admitted are those expressly alleged, those which fairly
can be viewed as impliedly alleged, and those which may be fairly
and justly inferred from the facts alleged." Rosillo v.
, 235 Va. 268, 270, 367 S.E.2d 717, 717 (1988).

In the plaintiffs’ amended Count II, all the
factual allegations from the original Count II (which expressly
incorporated by reference most of the factual allegations of
original Count I) were not included. Under these circumstances,
another rule impacting consideration of demurrers becomes
pertinent. When an amended motion for judgment, or amended count
thereof, is filed and a comparison of the original and amended
pleading shows that the amended motion for judgment, or amended
count, was intended as a substitute for the original, the case
stands as though the original had never been filed, so far as it
relates to the statement of facts. Trotter v. E.I. Dupont de
Nemours and Co.
, 124 Va. 680, 682-83, 98 S.E. 621, 622
(1919). See Washington S. Ry. Co. v. Cheshire, 109
Va. 741, 743, 65 S.E. 27, 28 (1909).

In the present case, due to the variance
between the respective allegations, it is apparent that the
plaintiffs intended amended Count II as a substitute for original
Count II. Hence, in order to determine whether the allegations of
public nuisance are sufficient to withstand demurrer, we shall
examine only the facts asserted in amended Count II and in the
second motion for judgment.

Because the demurrer admits all well-pleaded
facts, we shall recite them as if they are true. A public right
of way named Gilmer Avenue Extension is located within the Town’s
limits. Real estate used and maintained by the Russell County
Department of Social Services adjoins the right of way. The
Department owned a large trash dumpster that was located on the
edge of its property adjoining Gilmer Avenue.

Defendants Hensley, Wolfe, and Hess, in their
capacities as employees of the Town, by use of a garbage truck,
"placed the aforesaid dumpster, in the position it was
located on the evening of September 13, 1991." This
allegation is susceptible to two meanings: It could mean that the
dumpster was placed there on September 13 or it could mean that
the dumpster had been placed there at some unspecified time
before September 13 and had remained there to the time of the
accident. On demurrer, the latter inference must be accepted as
fact because it is more favorable to plaintiffs by showing a
degree of permanency to the condition. It is noted that the
original motion for judgment, now abandoned, alleges Hensley
placed the dumpster at the site on September 13.

Continuing, the location of the dumpster within
the right of way caused a dangerous and hazardous condition not
authorized by law with respect to the lawful use of Gilmer
Avenue. Before and on September 13, the defendants allowed the
dumpster to extend into the street where it obstructed and
impeded the public’s entitlement to the full and free use of all
the territory embraced within the street.

In the alternative, the plaintiffs alleged
that, if the condition described was authorized by law, the
conduct of the defendants in placing the dumpster where it was
located on September 13 constituted negligence on their part.

In the "evening" of September 13, the
infant plaintiff, while riding her bicycle in a westerly
direction on Gilmer Avenue, physically struck a portion of the
dumpster, which extended into the right of way. As a result, the
plaintiffs were damaged.

The first question on appeal is whether the
allegations of amended Count II and of the second motion for
judgment sufficiently set forth a public nuisance claim. We hold
that the allegations are sufficient to withstand demurrer.

Any unauthorized obstruction that unnecessarily
impedes the lawful use of a public street is a public nuisance at
common law. City of Richmond v. Smith, 101 Va. 161, 166,
43 S.E. 345, 346 (1903). But a public nuisance is restricted to a
condition that is "dangerous and hazardous in itself," Taylor
v. City of Charlottesville
, 240 Va. 367, 372, 397 S.E.2d 832,
835 (1990). It must prevail "at all times and under all
circumstances," Price v. Travis, 149 Va. 536, 547,
140 S.E. 644, 647 (1927), but not in "absolute
perpetuity." Smith, 101 Va. at 168, 43 S.E. at 347.
More than sporadic or isolated conditions must be shown; the
interference must be "substantial." City of Newport
News v. Hertzler
, 216 Va. 587, 594, 221 S.E.2d 146, 151
(1976). Yet, any unauthorized use of a public highway that is
extensive and continues long enough to be unreasonable may amount
to a public nuisance. Smith, 101 Va. at 168, 43 S.E. at

In the present case, the plaintiffs’ bare
allegations of fact, considered according to demurrer rules,
support the foregoing elements of a public nuisance. However, the
pleadings leave many factual questions unanswered. For example,
the size and extent of the encroachment into the public way will
be relevant upon the elements of unnecessary impediment,
dangerousness, and hazardousness. Also, the question of
permanency and whether the condition was substantial must be the
subject of elaboration when the evidence is presented. These are
just a few of the matters that need to be addressed if the
plaintiffs are to recover. But that does not mean that the
plaintiffs are precluded at this stage of the proceeding from
going forward with their case. Thus, we hold that the trial court
erred in short circuiting the litigation upon demurrer.

The other question on appeal is whether the
trial court erred in applying the notice requirements of Code
? 8.01-222 to these actions and dismissing the actions
against the municipality as well as its employees.

As pertinent, Code ? 8.01-222 provides:

"No action shall be maintained against
any city or town for injury to any person . . .
alleged to have been sustained by reason of the negligence of
the city or town, or any officer, agent or employee thereof,
unless a written statement by the claimant, his agent,
attorney or representative of the nature of the claim and of
the time and place at which the injury is alleged to have
occurred or been received shall have been filed with the city
attorney or town attorney . . . within six months
after such cause of action shall have
accrued. . . ."

The language of the statute is clear and
comprehensive; its provisions are mandatory, but not
jurisdictional. Town of Crewe v. Marler, 228 Va. 109, 112,
319 S.E.2d 748, 749 (1984).

There is no dispute that an attorney for the
infant plaintiff, within about four months of the September 13,
1991 accident, notified the Lebanon Town Attorney that the
accident occurred on September 25, 1991. Recognizing that
"the date of Melinda’s injury was incorrectly cited,"
the plaintiffs argue that the statute is inapplicable to a claim
of nuisance. They contend that "it applies only to injuries
sustained by reason of negligence. Nuisance and Negligence are
entirely different causes of action." Given the allegations
in these cases, we disagree with the plaintiffs.

"[W]hen 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." Hawthorn v. City of Richmond, 253 Va.
283, 286, 484 S.E.2d 603, 605 (1997). Collection and disposal by
a municipality of garbage and other refuse, including, as here,
repositioning a trash dumpster, is authorized by law, former Code
? 15.1-857 (now ? 15.2-927), contrary to the
plaintiffs’ conclusion in their pleadings that the defendants’
acts were unlawful.

While nuisance and negligence are distinct
legal concepts, Chapman v. City of Virginia Beach, 252 Va.
186, 192, 475 S.E.2d 798, 802 (1996), it does not obliterate the
distinction between them to say that negligence is an essential
element or component of nuisance when, as here, one seeks to hold
a municipality liable for maintaining a nuisance when performing
an act authorized by law. See Hawthorn, 253 Va. at
287, 484 S.E.2d at 605. In other words, under these allegations,
the Town is liable for maintaining a public nuisance only if the
plaintiffs can establish the Town employees were negligent. This
case is unlike City of Portsmouth v. Weiss, 145 Va. 94,
133 S.E. 781 (1926), relied upon by the plaintiffs, in which
there was a claim of private nuisance as the result of an
affirmative wrong done by the municipality and the plaintiff was
not required to establish negligence.

Therefore, even though Code ? 8.01-222
does not employ the term "nuisance," but provides for
notice of injuries sustained by reason of "negligence,"
we conclude that the statute applies to this nuisance claim in
which negligence is an essential element. Thus, we hold the trial
court correctly sustained the special plea dismissing the Town
from the actions.

The plaintiffs also argue the trial court erred
in dismissing the actions against the Town employees, Hensley,
Wolfe, and Hess. The plaintiffs contend the express language of
the statute applies only to actions against municipalities. We

Statutes requiring notice as a condition
precedent to making a claim against a municipality are in
derogation of the common law. They should be strictly construed
when determining the persons to which they apply and not be
extended by implication beyond their own terms. See Weiss,
145 at 109-10, 133 S.E. at 786.*

Plainly, the express language of the statute
does not include actions against the employees or agents of the
municipality. The statute clearly provides that no action shall
be maintained against "any city or town."

And, we reject the defendants’ contention that Halberstam
v. Commonwealth
, 251 Va. 248, 253 n.2, 467 S.E.2d 783, 786
n.2 (1996), a case interpreting the notice provisions of the
Virginia Tort Claims Act, compels a conclusion that the terms of
? 8.01-222 should be extended by implication to apply to
the Town employees. Halberstam involved a waiver of
sovereign immunity and a claim against an agency of the
Commonwealth, not an employee.

Consequently, the portion of the judgment below
that dismissed the Town as a defendant will be affirmed, the
portion that dismissed the individuals as defendants will be
reversed, and the case will be remanded for further proceedings
on amended Count II and the second motion for judgment against
the individual defendants.

Affirmed in part, reversed in part, and


* In Marler, we repeated a
statement from Bowles v. City of Richmond, 147 Va. 720,
727, 129 S.E. 489, 490 (1925), that the notice statute should be
construed liberally and substantial compliance with its terms is
sufficient. 228 Va. at 112, 319 S.E.2d at 749. But the context in
which the liberal construction statement was made dealt with
substantial compliance by the claimant with the requirements for
the notice and not, as here, with the threshold question of to
whom the statute applies.