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




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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




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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




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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




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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.




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       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




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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




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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.




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