The Lawletter Vol 36 No 7
Matthew McDavitt, Senior Attorney, National Legal Research Group
It is sometimes unclear whether particular governmental bodies enjoy the broad-based blanket immunity afforded to political subdivisions of states, such as counties, or whether the more limited "governmental function" immunity applies, granting protection from tort suit regarding only political, discretionary, or legislative functions.
"A function is governmental if it is directly tied to the health, safety, and welfare of the citizens." Niese v. City of Alexandria, 264 Va. 230, 239, 564 S.E.2d 127, 132 (2002) (citation omitted) (internal quotation marks omitted). Where governmental function immunity applies, any actions deemed to be "proprietary" in nature, i.e., those performed for the private benefit of the governmental bodyClikened to for-profit activities of private corporations such as distributing water to households for a feeCare not immune from suit.
Case law confirms that the water authorities generally do not enjoy the blanket immunity from tort suit that counties do, but merely the limited "governmental function" immunity afforded to municipal corporations.
A characteristic example of a function undertaken by cities and towns in their private or proprietary capacity is the distribution of water to their inhabitants for domestic purposes. Such a function is one that is often performed by private water companies, and when assumed by a municipal corporation it is a purely commercial transaction between the municipality as a dealer and the citizen as a customer. While an ample supply of fine water doubtless enhances the public health, this result is merely incidental, and the primary object of a city or town in securing a water supply is to increase the comfort and convenience of its own inhabitants. It is accordingly well settled that a municipal corporation is liable for the negligence of its employees in connection with its water department to the same extent as a private company.
City of Richmond v. Va. Bonded Warehouse Corp., 148 Va. 60, 71, 138 S.E. 503, 506 (1927) (citation omitted) (internal quotation marks omitted). Additionally, an unpublished trial order of the Circuit Court of Virginia, City of Roanoke, similarly held that public water authorities created pursuant to the Virginia Water and Waste Authorities Act, Va. Code Ann. §§ 15.2-5100 through -5158, constitute municipal corporations, even where created under the auspices of counties. "[T]he General Assembly intentionally withheld full sovereign immunity from entities chartered under the Water and Waste Authorities Act. As a municipal corporation, the Authority is entitled to assert, and to try to prove, that it is entitled to governmental-function immunity [only]." Robertson v. W. Va. Water Auth., No. CL07-1316, 2011 WL 3295668 (Va. Cir. Ct. City of Roanoke July 25, 2011). Finally, in a recent opinion, an Attorney General concluded that
It is my opinion that a water authority created pursuant to the Virginia Water and Waste Authorities Act is a public body, specifically, a municipal corporation. . . . As a municipal corporation, sovereign immunity shields a water authority from liability for its governmental functions, but not its proprietary functions.
Op. Va. Att'y Gen. 06-060, 2006 WL 4286453, at *3 (Oct. 31, 2006). As a result, proprietary functions performed by Virginia water authorities, such as installing or removing meters in private homes or terminating water service, are acts not immune from tort suit, and such water authorities are fully liable for the negligence of their employees, just as a private person or corporation would be.
