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DECKER v. HARLAN, et al.

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DECKER v. HARLAN, et al.

June 9, 2000

Record No. 992098





Wilford J. Taylor, Jr., Judge

Present: All the Justices



In this appeal, we consider whether Code ? 15.2-1809
bars a plaintiff’s tort claims against the City of Hampton, which
operates the Hampton Coliseum, and its employee, a building
mechanic assigned to work at that facility. Code
? 15.2-1809 states in relevant part:

"No city or town which operates any park, recreational
facility or playground shall be liable in any civil action or
proceeding for damages resulting from any injury to the person or
from a loss of or damage to the property of any 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 such park, recreational facility or
playground. 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 park, recreational
facility or playground."


Plaintiff, Gladys Janet Decker, filed her motion for judgment
against the City of Hampton and its employee, Thomas D. Harlan,
II. Decker alleged that she sustained personal injuries when a
refuse truck, operated by Harlan, collided with her van. The
defendants, relying upon Code ? 15.2-1809, filed a plea of
statutory immunity. The circuit court conducted an evidentiary
hearing, sustained the plea, and, among other things, entered a
judgment in favor of the defendants. Decker appeals.

The following evidence was adduced at the evidentiary hearing.
On October 29, 1996, Decker was driving a van on Magruder
Boulevard near its intersection with Semple Farm Road in the City
of Hampton. While she was in her van, stopped at a traffic light,
a refuse truck operated by Harlan collided with Decker’s van,
injuring her.

On the date of the accident, Harlan was employed as a building
mechanic for the City of Hampton and the Hampton Coliseum. The
Hampton Coliseum is a facility "that hosts concerts, family
shows, sports events, conventions, trade and customer shows, and
meetings." Harlan was required to remove "the staging
set up from . . . previous event[s], totally clean the
building, mark the floor and set up the tables and the chairs and
the displays."

A refuse truck was regularly used to remove trash that
accumulated in the Coliseum. The truck is owned by the City of
Hampton and "assigned by the City to the . . .
Coliseum." Harlan was required to remove the trash from the
Coliseum by transporting the trash in the refuse truck to a steam
plant where the trash was incinerated.

Harlan testified that on the evening when the accident
occurred, he learned that the refuse truck that was assigned to
the Coliseum was full. He decided to drive the refuse truck to
the steam plant and empty the trash because an event was
scheduled to be held at the Coliseum the next day. The accident
happened while Harlan was driving the refuse truck to the steam


Decker argues that the circuit court erred in holding that
Code ? 15.2-1809 "shields both the City of Hampton and
the employee driver from civil liability for negligence arising
out of an accident, caused by a city employee while driving a
truck loaded with trash on its way from a recreational facility
to a steam plant, miles from the facility, where the activity
giving rise to liability did not arise out of the maintenance or
operation of the recreational facility." Decker asserts that
DePriest v. Pearson, 239 Va. 134, 387 S.E.2d 480
(1990), supports her contentions. We disagree with Decker’s

In DePriest, we considered whether a bus was a
"recreational facility" within the meaning of Code
? 15.1-291, the predecessor statute to Code
? 15.2-1809. The Henrico County Department of Parks and
Recreation sponsored a recreational trip to a retail
establishment in Williamsburg for a group of citizens. The
Department of Parks and Recreation furnished one of its buses and
a driver. En route to the destination, the driver lost control of
the bus, which overturned. Two passengers who were injured in the
accident filed separate actions against Henrico County and its
bus driver. The circuit court held, in each case, that the
respective plaintiffs could not recover because former Code
? 15.1-291 barred the plaintiffs’ claims against the County
and its bus driver unless the operator of the bus was guilty of
gross negligence. DePriest, 239 Va. at 136, 387 S.E.2d at

We disagreed with the circuit court in DePriest, and we
held that Code ? 15.1-291 did not bar the plaintiffs’
claims because the bus was not a recreational facility within the
meaning of the statute. We observed that the bus driver’s sole
argument was that he was entitled to the benefit of former Code
? 15.1-291 because he was operating a recreational facility
at the time the bus overturned. We stated, "[o]bviously, the
county was not operating a ‘recreational facility’ when it was
transporting passengers by bus to an outing in Williamsburg. In
these cases, the bus and Pearson’s use of it simply served as a
means of transportation." Id. at 137, 387 S.E.2d at

Here, unlike the bus in DePriest, the Hampton Coliseum
is a recreational facility within the intendment of Code
? 15.2-1809. 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. It is a place
. . . where members of the public are entertained and
diverted, either by their own activities or by the activities of
others." Frazier v. City of Norfolk, 234 Va.
388, 392, 362 S.E.2d 688, 690 (1987).

We must now consider whether Harlan’s act of driving the
refuse truck to the steam plant was a part of the
"maintenance or operation" of the Coliseum within the
intendment of Code ? 15.2-1809. This inquiry is a mixed
question of law and fact, and, therefore, the circuit court’s
conclusions are not binding on this Court. See Wilder v. Attorney
, 247 Va. 119, 124, 439 S.E.2d 398, 401 (1994); Richmond
Newspapers, Inc.
v. Gill, 224 Va. 92, 95, 294 S.E.2d
840, 841 (1982).

As we have already stated, Harlan’s job responsibilities
required that he empty the refuse truck by driving it to a steam
plant where the trash would be removed and incinerated. Joseph
Tsao, director of the Hampton Coliseum, testified that the City
could not operate the Coliseum unless the trash was removed and
that trash removal was "a part of the normal maintenance of
the building." A food festival was scheduled to be held at
the Hampton Coliseum the day after the accident, and Harlan
needed to empty the refuse truck in preparation for that event.
The refuse truck that Harlan was operating when the accident
occurred was assigned to the Hampton Coliseum for the specific
use of transporting trash, generated by events at the Coliseum,
to the steam plant for incineration. We hold that the removal of
trash created by the use of the recreational facility was a
necessary and essential aspect of the maintenance or operation of
the Coliseum and, thus, Code ? 15.2-1809 bars Decker’s

In view of our holding, we need not consider Decker’s
remaining arguments. Accordingly, we will affirm the judgment of
the circuit court.



[1] Decker does not argue and,
therefore, we do not consider whether Code ? 15.2-1809
affords immunity to an employee of a city, such as Harlan.