PRESENT: All the Justices
SAM MASSENBURG, ADMINISTRATOR OF THE ESTATE OF COREY DEMETRIUS MASSENBURG, DECEASED, OPINION BY v. Record No. 190071 JUSTICE WILLIAM C. MIMS December 12, 2019 CITY OF PETERSBURG
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Joseph M. Teefey, Jr., Judge
In this case, we consider whether a municipality is entitled to sovereign immunity for
negligence claims arising from a defective fire hydrant.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Corey Demetrius Massenburg died during a fire at his Petersburg residence. His father,
Sam Massenburg, qualified as the administrator of his estate and in that capacity filed a
wrongful-death action against the City of Petersburg. The complaint alleged that a fire began at
Corey’s residence while he was inside. Although firefighters arrived promptly, the closest fire
hydrant “was effectively inoperable” because it “was not receiving an adequate or sufficient
sustained flow of water.” The complaint stated that the lack of water pressure was a systemic
problem affecting the area in which the house was situated. It faulted the City for failing to
notify area residents that the infrastructure was “not adequate or sufficient to provide the
required safe flow of water to fire hydrants in the area.” Firefighters had to resort to the next
closest hydrant “some 1,000 feet away,” and as a result, Corey “died from smoke inhalation and
thermal injuries before firefighters could establish a sufficient water supply and remove him
from the burning residence.”
In response, the City filed a demurrer and plea in bar asserting that sovereign immunity
barred Massenburg’s suit. It contended that because Massenburg’s claim arose from its governmental functions of operating a fire department and supplying water for fire protection,
the City was immune from Massenburg’s suit. The trial court conducted a combined hearing on
the plea in bar and demurrer. Because the City did not dispute the allegations in the complaint,
the trial court declined Massenburg’s request for a jury trial on the plea and instead decided the
case on the pleadings. Ruling from the bench, the trial court observed that despite the “mix of
factual allegations regarding maintenance of the water system,” the ultimate harm alleged in the
complaint was that the City failed to extinguish the fire in a timely manner, which made
firefighting the municipal function at issue. Because responding to emergency calls for fires is
an immune governmental function, the trial court concluded that sovereign immunity barred
Massenburg’s suit. It accordingly granted the City’s demurrer and plea in bar and dismissed the
complaint with prejudice.
We awarded Massenburg this appeal.
II. ANALYSIS
Massenburg assigns error to the trial court’s failure to hold a jury trial on the City’s plea
in bar and its ruling that sovereign immunity bars his complaint.
A. Plea in Bar
“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s
recovery.” Hawthorne v. VanMarter, 279 Va. 566, 577 (2010). The party asserting the plea in
bar bears the burden of proof. Id. Two possible standards of review apply, depending on
whether the plea’s proponent elects to meet that burden by presenting evidence or relying on the
pleadings. In the former situation, in which the “parties present evidence on the plea ore tenus,
the circuit court’s factual findings are accorded the weight of a jury finding and will not be
disturbed on appeal unless they are plainly wrong or without evidentiary support.” Id. In the
2 latter situation, “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 [complaint] are deemed true.” Lostrangio v.
Laingford, 261 Va. 495, 497 (2001). This approach results in functionally de novo review of the
trial court’s judgment.
Massenburg argues that the trial court erred in granting the plea in bar when it involved
factual questions that a jury should have decided. This Court has held that the constitutional
right to trial by jury, when properly invoked, applies to pleas in bar. See Bethel Inv. Co. v. City
of Hampton, 272 Va. 765, 769–70 (2006). “If the facts underlying the plea in bar are contested,
a party may demand that a jury decide the factual issues raised by the plea.” Hawthorne, 279
Va. at 577. Unless the demand is limited to certain issues, “the party shall be deemed to have
demanded trial by jury for all the issues so triable.” Rule 3:21(c). “Conversely, if the facts are
disputed and no demand for a jury is made, the ‘whole matter of law and fact’ may be decided by
the court.” Hawthorne, 279 Va. at 578 (quoting Code § 8.01-336(B)).
Massenburg demanded a jury trial in both his complaint and brief in opposition to the
City’s plea in bar. As the conditional language from Hawthorne indicates, however, a demanded
jury trial is appropriate only “[i]f the facts underlying the plea in bar are contested.” For
purposes of its responsive pleadings, the City agreed with the facts as alleged in the complaint
and sought to submit the case on the pleadings. Although Massenburg requested discovery and
trial on various issues related to the ultimate immunity question, the City’s decision not to
contest the complaint’s allegations for purposes of the plea in bar means that the facts are not
disputed. See Cooper Indus., Inc. v. Melendez, 260 Va. 578, 582, 594–95 (2000) (approving trial
court’s decision to hear evidence and decide a plea in bar regarding applicability of a statute of
3 repose when the plaintiff objected “that the plea in bar involved disputed factual questions to be
resolved by a jury”). The trial court therefore did not err in deciding the case on the pleadings
despite Massenburg’s jury demand. And because the trial court did not take evidence, its rulings
present issues of law this Court reviews de novo. See Assurance Data, Inc. v. Malyevac, 286 Va.
137, 143 (2013); Weichert Co. of Virginia, Inc. v. First Commercial Bank, 246 Va. 108, 108
(1993) (“As no evidence was taken, we, like the trial court, rely solely on the pleadings in
resolving the issue before us.”).
B. Municipal Sovereign Immunity
The central issue in this appeal is whether sovereign immunity bars Massenburg’s suit.
Virginia has long recognized that local governments share in the Commonwealth’s sovereign
immunity. See City of Richmond v. Long, 58 Va. (17 Gratt.) 375, 379 (1867). Unlike counties,
which share fully in the sovereign’s immunity from tort, Seabolt v. County of Albemarle, 283 Va.
717, 719 (2012), whether a municipal corporation is entitled to sovereign immunity protection
depends on the type of function it exercises when liability arises, City of Chesapeake v.
Cunningham, 268 Va. 624, 634 (2004).
Under longstanding principles, sovereign immunity protects municipalities from tort
liability arising from governmental functions, but not proprietary functions. Id.; see Long, 58
Va. (17 Gratt.) at 378–79. A municipality engages in a governmental function when it exercises
powers and duties exclusively for the public welfare, effectively acting “as an agency of the state
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PRESENT: All the Justices
SAM MASSENBURG, ADMINISTRATOR OF THE ESTATE OF COREY DEMETRIUS MASSENBURG, DECEASED, OPINION BY v. Record No. 190071 JUSTICE WILLIAM C. MIMS December 12, 2019 CITY OF PETERSBURG
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG Joseph M. Teefey, Jr., Judge
In this case, we consider whether a municipality is entitled to sovereign immunity for
negligence claims arising from a defective fire hydrant.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Corey Demetrius Massenburg died during a fire at his Petersburg residence. His father,
Sam Massenburg, qualified as the administrator of his estate and in that capacity filed a
wrongful-death action against the City of Petersburg. The complaint alleged that a fire began at
Corey’s residence while he was inside. Although firefighters arrived promptly, the closest fire
hydrant “was effectively inoperable” because it “was not receiving an adequate or sufficient
sustained flow of water.” The complaint stated that the lack of water pressure was a systemic
problem affecting the area in which the house was situated. It faulted the City for failing to
notify area residents that the infrastructure was “not adequate or sufficient to provide the
required safe flow of water to fire hydrants in the area.” Firefighters had to resort to the next
closest hydrant “some 1,000 feet away,” and as a result, Corey “died from smoke inhalation and
thermal injuries before firefighters could establish a sufficient water supply and remove him
from the burning residence.”
In response, the City filed a demurrer and plea in bar asserting that sovereign immunity
barred Massenburg’s suit. It contended that because Massenburg’s claim arose from its governmental functions of operating a fire department and supplying water for fire protection,
the City was immune from Massenburg’s suit. The trial court conducted a combined hearing on
the plea in bar and demurrer. Because the City did not dispute the allegations in the complaint,
the trial court declined Massenburg’s request for a jury trial on the plea and instead decided the
case on the pleadings. Ruling from the bench, the trial court observed that despite the “mix of
factual allegations regarding maintenance of the water system,” the ultimate harm alleged in the
complaint was that the City failed to extinguish the fire in a timely manner, which made
firefighting the municipal function at issue. Because responding to emergency calls for fires is
an immune governmental function, the trial court concluded that sovereign immunity barred
Massenburg’s suit. It accordingly granted the City’s demurrer and plea in bar and dismissed the
complaint with prejudice.
We awarded Massenburg this appeal.
II. ANALYSIS
Massenburg assigns error to the trial court’s failure to hold a jury trial on the City’s plea
in bar and its ruling that sovereign immunity bars his complaint.
A. Plea in Bar
“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s
recovery.” Hawthorne v. VanMarter, 279 Va. 566, 577 (2010). The party asserting the plea in
bar bears the burden of proof. Id. Two possible standards of review apply, depending on
whether the plea’s proponent elects to meet that burden by presenting evidence or relying on the
pleadings. In the former situation, in which the “parties present evidence on the plea ore tenus,
the circuit court’s factual findings are accorded the weight of a jury finding and will not be
disturbed on appeal unless they are plainly wrong or without evidentiary support.” Id. In the
2 latter situation, “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 [complaint] are deemed true.” Lostrangio v.
Laingford, 261 Va. 495, 497 (2001). This approach results in functionally de novo review of the
trial court’s judgment.
Massenburg argues that the trial court erred in granting the plea in bar when it involved
factual questions that a jury should have decided. This Court has held that the constitutional
right to trial by jury, when properly invoked, applies to pleas in bar. See Bethel Inv. Co. v. City
of Hampton, 272 Va. 765, 769–70 (2006). “If the facts underlying the plea in bar are contested,
a party may demand that a jury decide the factual issues raised by the plea.” Hawthorne, 279
Va. at 577. Unless the demand is limited to certain issues, “the party shall be deemed to have
demanded trial by jury for all the issues so triable.” Rule 3:21(c). “Conversely, if the facts are
disputed and no demand for a jury is made, the ‘whole matter of law and fact’ may be decided by
the court.” Hawthorne, 279 Va. at 578 (quoting Code § 8.01-336(B)).
Massenburg demanded a jury trial in both his complaint and brief in opposition to the
City’s plea in bar. As the conditional language from Hawthorne indicates, however, a demanded
jury trial is appropriate only “[i]f the facts underlying the plea in bar are contested.” For
purposes of its responsive pleadings, the City agreed with the facts as alleged in the complaint
and sought to submit the case on the pleadings. Although Massenburg requested discovery and
trial on various issues related to the ultimate immunity question, the City’s decision not to
contest the complaint’s allegations for purposes of the plea in bar means that the facts are not
disputed. See Cooper Indus., Inc. v. Melendez, 260 Va. 578, 582, 594–95 (2000) (approving trial
court’s decision to hear evidence and decide a plea in bar regarding applicability of a statute of
3 repose when the plaintiff objected “that the plea in bar involved disputed factual questions to be
resolved by a jury”). The trial court therefore did not err in deciding the case on the pleadings
despite Massenburg’s jury demand. And because the trial court did not take evidence, its rulings
present issues of law this Court reviews de novo. See Assurance Data, Inc. v. Malyevac, 286 Va.
137, 143 (2013); Weichert Co. of Virginia, Inc. v. First Commercial Bank, 246 Va. 108, 108
(1993) (“As no evidence was taken, we, like the trial court, rely solely on the pleadings in
resolving the issue before us.”).
B. Municipal Sovereign Immunity
The central issue in this appeal is whether sovereign immunity bars Massenburg’s suit.
Virginia has long recognized that local governments share in the Commonwealth’s sovereign
immunity. See City of Richmond v. Long, 58 Va. (17 Gratt.) 375, 379 (1867). Unlike counties,
which share fully in the sovereign’s immunity from tort, Seabolt v. County of Albemarle, 283 Va.
717, 719 (2012), whether a municipal corporation is entitled to sovereign immunity protection
depends on the type of function it exercises when liability arises, City of Chesapeake v.
Cunningham, 268 Va. 624, 634 (2004).
Under longstanding principles, sovereign immunity protects municipalities from tort
liability arising from governmental functions, but not proprietary functions. Id.; see Long, 58
Va. (17 Gratt.) at 378–79. A municipality engages in a governmental function when it exercises
powers and duties exclusively for the public welfare, effectively acting “as an agency of the state
to enable it to better govern that portion of its people residing within its corporate limits.”
Hoggard v. City of Richmond, 172 Va. 145, 147 (1939). Proprietary functions, however, involve
the municipality’s exercise of its powers and privileges primarily for its own benefit. City of
Virginia Beach v. Carmichael Dev. Co., 259 Va. 493, 499 (2000); Hoggard, 172 Va. at 148. The
4 municipality lacks the protection of sovereign immunity for these ministerial activities even
though “the general public may derive a common benefit” from their performance. Hoggard,
172 Va. at 148; see Cunningham, 268 Va. at 634.
In determining whether a municipality is engaged in a governmental or proprietary
function, this Court has rejected a simple inquiry into whether private entities also perform the
same service. Edwards v. City of Portsmouth, 237 Va. 167, 172 (1989). Instead, “the test
applied by the Court . . . is ‘whether, in providing such services, the governmental entity is
exercising the powers and duties of government conferred by law for the general benefit and
well-being of its citizens.’” Carter v. Chesterfield Cty. Health Comm’n, 259 Va. 588, 593
(2000) (quoting Edwards, 237 Va. at 172). If so, the function is governmental and the
municipality is immune. If not, the function is proprietary and the municipality is potentially
subject to liability. Id.
Our cases have previously classified certain municipal actions. For instance, and as
relevant to the case at bar, operation of a fire department is a governmental function. Hoggard,
172 Va. at 154 (noting that cases have held that “municipalities are not liable for such acts and
omissions in the exercise of the police power, or in the performance of such municipal faculties
as . . . the operation of fire departments”). This is because firefighting falls within a
municipality’s power and duty to provide emergency services “for the general safety and welfare
of the citizenry.” Gambrell v. City of Norfolk, 267 Va. 353, 359 (2004). On the other hand, it is
similarly well-settled that the routine operation and maintenance of a municipal water and sewer
system is a proprietary function. See Robertson v. W. Virginia Water Auth., 287 Va. 158, 161
(2014) (holding water authority not entitled to sovereign immunity for damages resulting from
flow from a broken sewer pipe); Woods v. Town of Marion, 245 Va. 44, 47 (1993) (reversing
5 granted plea of sovereign immunity when complaint alleged negligent maintenance of
waterworks caused water to leak from pipes, freeze on a road, and contribute to a collision).
This Court’s decision in City of Richmond v. Virginia Bonded Warehouse Corp., 148 Va.
60 (1927), which addressed a situation implicating both firefighting and water-supply functions,
controls this case. There, the plaintiff company sought to install a fire-suppression sprinkler
system in one of its warehouses. Id. at 66. To facilitate this process, the company requested that
Richmond’s water department close the valve controlling the warehouse’s water supply. Id. at
67. The water department dispatched an employee to shut off the supply, but he negligently
failed to close the correct valve. Id. at 68. As a result, water flooded the warehouse and
damaged stored goods. Id. at 69. The company brought a negligence action against Richmond,
which claimed immunity because its act “in furnishing water to the sprinkler should be classed as
a governmental act in like manner as the acts of the fire department.” Id. at 72.
This Court rejected Richmond’s position. Even though the water’s use for sprinklers
implicated Richmond’s firefighting function, the Court emphasized that the connection to that
governmental function was too remote to trigger sovereign immunity. Id. at 71. We elaborated:
The mere fact that a municipal corporation uses its water works system for the extinguishment of fires as well as for the distribution of water for domestic purposes, does not exonerate it from liability for an injury arising from negligence in the management of its water works not directly connected with the extinguishment of fires.
Id. (emphasis added). The installation of the sprinkler, it found, was for the warehouse
company’s private benefit rather than to aid Richmond in preventing or extinguishing fires. Id.
at 74. Instead, Richmond had acted solely within its proprietary function of supplying water and
therefore lacked sovereign immunity. Id.
6 This case presents the inverse of Virginia Bonded Warehouse. The sole negligence
alleged in Massenburg’s complaint is that the City’s systemic negligent maintenance of its water
system prevented a sufficient flow of water to the fire hydrant in front of the house, inhibiting the
firefighters’ response. Although this allegation is more “directly connected with the
extinguishment of fires” than that in Virginia Bonded Warehouse, Massenburg’s complaint
alleged the systemic nature of the City’s failure to maintain adequate water pressure, apparently
in an effort to bring this case within the City’s proprietary water-supply function. Id. at 71.
At oral argument, however, counsel for Massenburg declined to argue this position,
conceding that he did not possess information that there was insufficient pressure generally or
that the water supply was otherwise inhibited in a systemic manner. When asked whether a
systemic lack of water pressure caused the harm, counsel argued that the cause was instead
defective equipment that the City was supposed to take care of. I’m assuming the water pressure was fine. There’s not a concern about a lack of supply of water. The fire department just couldn’t get to it because the public works department didn’t take care of the things they were supposed to take care of.
Upon the Court directing counsel’s attention to the complaint’s language alleging insufficient
water supply, counsel stated that “the entire system was in disrepair, but there was not a shortage
in the supply of water. There was a shortage because . . . nobody had taken care of the pipes, the
mains, the valves for the fire hydrant.” When asked whether he continued to take the position
that there was insufficient systemic pressure, counsel responded regarding the inoperable
condition of the single fire hydrant closest to Corey’s house. In addition, the complaint’s
allegation that there was an operational fire hydrant 1,000 feet away calls into question the
contention that the City’s negligence was systemic. Massenburg’s case thus turns on the narrow
7 question of whether the City can be liable for injuries resulting from its failure to maintain the
operability of the fire hydrant in front of the house.
A fire hydrant, as the name suggests, exists to facilitate the firefighting function of the
municipality that installed it. That function is quintessentially governmental. That fire hydrants
can be put to other uses is inconsequential because the sole reason municipalities undertake the
expense of installing fire hydrants is to promote their ability to respond to fire emergencies. The
fire hydrant in this case is distinct from the sprinklers in Virginia Bonded Warehouse. Whereas
the warehouse company installed the sprinkler system for its own private benefit and
Richmond’s only involvement was supplying water to that system, in this case the City—not a
private owner—installed the fire hydrants, and it did so to provide “for the general safety and
welfare of the citizenry.” Gambrell, 267 Va. at 359. The City’s provision and maintenance of
fire hydrants is therefore an immune governmental function. See Carter, 259 Va. at 593.
Moreover, to the extent that this governmental function coincides with the City’s proprietary
functions in Massenburg’s surviving allegations, “‘the governmental function is the overriding
factor’ and the doctrine of sovereign immunity will shield the locality from liability.”
Carmichael Dev. Co., 259 Va. at 499 (quoting Taylor v. City of Newport News, 214 Va. 9, 10
(1973); see Bialk v. City of Hampton, 242 Va. 56, 58 (1991). Accordingly, the trial court did not
err in granting the City’s demurrer and plea in bar of sovereign immunity and dismissing
Massenburg’s complaint with prejudice.
III. CONCLUSION
The trial court did not err in deciding the City’s plea in bar on the pleadings because the
City did not dispute the complaint’s factual allegations. It also properly granted the City’s
demurrer and plea in bar of sovereign immunity because Massenburg’s complaint alleged
8 negligence arising from the City’s immune governmental function of providing and maintaining
fire hydrants. Accordingly, we affirm the trial court’s ruling dismissing Massenburg’s complaint
with prejudice.
Affirmed.