PRESENT: All the Justices

THOMAS L. ROBERTSON
                                              OPINION BY
v.   Record No. 130416                  JUSTICE CLEO E. POWELL
                                           January 10, 2014
WESTERN VIRGINIA WATER AUTHORITY

           FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                    Clifford R. Weckstein, Judge

      Thomas L. Robertson (“Robertson”) appeals the judgment of

the trial court that the doctrine of sovereign immunity applies

to bar tort claims against a municipal corporation for the

maintenance and operation of a sanitary sewer system.     Having

determined that the maintenance and operation of a sanitary

sewer system is a proprietary function, we will reverse the

judgment of the trial court.

                            I.   BACKGROUND

      In late June of 2006, a 12-inch diameter terracotta sewer

line burst on real property owned by Robertson.     The flow from

the broken sewer line caused a partial collapse of a 10-foot

high retaining wall running along the rear of the property.      As

a result, Robertson suffered extensive damage to his property.

      Robertson filed a complaint against the owner of the sewer

pipe, the Western Virginia Water Authority (the “Authority”).

In his complaint, Robertson alleged that the Authority was

negligent in its maintenance and operation of the sewer line.
In its answer, the Authority admitted that it owned and

maintained the sewer line, but denied negligence.

     Prior to trial, the Authority moved for summary judgment on

the basis that operating and maintaining the sewer line is a

governmental function and, therefore, as a municipal

corporation, the doctrine of sovereign immunity precluded

liability.   After hearing argument by the parties, the trial

court determined that “the maintenance and operation in all

respects of a sanitary sewer system is a governmental public

safety function and that governmental immunity applies to the

[Authority].”   The trial court granted the Authority’s motion

for summary judgment.

     Robertson appeals.

                            II.   ANALYSIS

     In his appeal, Robertson argues that the maintenance and

operation of a municipal sewer system is a proprietary function

and, therefore, the Authority is not entitled to sovereign

immunity.

     “A plea of sovereign immunity presents distinct issues of

fact that, if proved, create a bar to a party's alleged right of

recovery.    The party advancing the sovereign immunity plea bears

the burden of proving those issues of fact.”    Gambrell v. City

of Norfolk, 267 Va. 353, 357, 593 S.E.2d 246, 249 (2004)

(citations omitted).


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          In Virginia, municipal corporations exercise
          two types of functions, governmental and
          proprietary. A function is governmental in
          nature if it is directly related to the
          general health, safety, and welfare of the
          citizens. In contrast, a function is
          proprietary in nature if it involves a
          privilege and power performed primarily for
          the benefit of the municipality. As a
          general rule, when an allegedly negligent
          act involves the routine maintenance or
          operation of a service being provided by a
          municipality, the function is considered to
          be a proprietary one.

          A municipality is immune from liability for
          negligence in the exercise of a governmental
          function, as well as for negligence in the
          failure to exercise a governmental function.
          However, a municipality is liable, in the
          same manner as an individual or a private
          entity, for injuries resulting from
          negligence in the performance of proprietary
          functions.

Id. at 357-58, 593 S.E.2d at 249 (citations omitted).    See also

City of Chesapeake v. Cunningham, 268 Va. 624, 633-35, 604

S.E.2d 420, 426-27 (2004).

     It is well established that “when a municipality plans,

designs, regulates or provides a service for the common good, it

performs a governmental function.”     City of Chesapeake, 268 Va.

at 634, 604 S.E.2d at 426.     Thus, if the issue was negligence in

the plan or design of the sewer system, the Authority would be

immune from liability.   Id.

     “In contrast, routine maintenance or operation of a

municipal service is proprietary.”     Id. at 634, 604 S.E.2d at




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427.   This Court has recognized that “a municipal corporation

may be held liable, as a private person might be, for negligence

in the exercise of its proprietary functions.”       Woods v. Town of

Marion, 245 Va. 44, 45, 425 S.E.2d 487, 488 (1993).      Indeed,

with regard to sanitary sewer systems, this Court has

specifically recognized that “‘the obligation to establish and

open sewers is a legislative duty, while the obligation to keep

them in repair is ministerial.’”       Chalkley v. City of Richmond,

88 Va. 402, 408, 14 S.E. 339, 341 (1891) (quoting Ashley v. Port

Huron, 35 Mich. 296, 300 (1877) (emphasis omitted).      “‘There is

a municipal liability where the property of private persons is

flooded, either directly or by water being set back, when this

is the result of . . . the negligent failure to keep [sewers] in

repair and free from obstructions.’”       Id. (quoting John F.

Dillon, Commentaries on the law of Municipal Corporations § 1051

(4th ed. 1890)); see also City of Chesapeake, 268 Va. at 635,

604 S.E.2d at 427 (2004) (citing Chalkley for the notion that

routine maintenance of a sanitary sewer is proprietary).

       Applying these principles to the present case, we hold that

the trial court erred in holding that the Authority was entitled

to sovereign immunity.

                          III.   CONCLUSION




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     For the foregoing reasons, the judgment of the trial court

will be reversed and we will remand the case for further

proceedings consistent with this opinion.

                                            Reversed and remanded.




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