Carter v. Chesterfield County Health Commission

Present: 	Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
VANCE W. CARTER, JR., ADMINISTRATOR OF
THE ESTATE OF VANCE W. CARTER, SR.,
DECEASED
v. 	Record No. 991870 	OPINION BY JUSTICE ELIZABETH B. LACY
April 21, 2000
CHESTERFIELD COUNTY HEALTH
COMMISSION, D/B/A LUCY CORR
NURSING HOME
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
In this appeal, we consider whether the trial court
properly concluded that a county health commission was immune
from tort liability because it was entitled to the status of a
municipal corporation and was performing a governmental
function in the operation of a nursing home.
Vance W. Carter, Jr., Administrator of the Estate of
Vance W. Carter, Sr., (the Administrator) filed a motion for
judgment against the Chesterfield County Health Commission,
d/b/a Lucy Corr Nursing Home, (the Commission) and others
alleging that negligent acts of the Commission's employees in
treating or failing to treat the decedent resulted in his
death. 	The Commission filed a special plea of sovereign
immunity. 	Based on the pleadings, memoranda, and argument of
counsel, the trial court ruled that the operation of the
nursing home by the Commission was a governmental function
and, therefore, entitled to sovereign immunity. 	The trial

court dismissed the Administrator's claim against the
Commission and granted the Administrator's motions to non-suit
the remaining defendants. 	We awarded the Administrator an
appeal.
The Commission is a political subdivision created by a
locality pursuant to statutory authorization. 	We have held
that such entities may be entitled to the status of a
municipal corporation for purposes of immunity from tort
liability in certain circumstances. 	Virginia Elec. and Power
Co. v. Hampton Redevelopment and Housing Authority, 217 Va.
30, 33, 225 S.E.2d 364, 367 (1976); Hampton Roads Sanitation
Dist. v. Smith, 193 Va. 371, 377, 68 S.E.2d 497, 501 (1952).
The parties generally agree that the Commission is entitled to
the status of a municipal corporation.
Municipal corporations are immune from tort liability
when performing governmental functions, but are not immune
when exercising proprietary functions. 	City of Richmond v.
Long's Adm'rs, 58 Va. (17 Gratt.) 375, 379 (1867), rev'd on
other grounds, First Va. Bank-Colonial v. Baker, 225 Va. 72,
301 S.E.2d 18 (1983). 	The principles to be applied in
determining whether a municipality is engaged in a proprietary
or governmental function for purposes of immunity are well
established. 	A function is considered governmental if it is
the exercise of an entity's political, discretionary, or
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legislative authority. 	If the function is a ministerial act,
"assumed in consideration of the privileges conferred by . . .
charter," and involves no discretion, it is proprietary. 	Id.
The parties also agree that the Commission would be
entitled to immunity if the operation of the nursing home were
a governmental function.* However, the Administrator asserts
that the traditional analysis applied in determining whether a
municipal function is proprietary or governmental is not
applicable to entities such as the Commission because such
"locally created commissions are further removed from the
state" and, therefore, they "enjoy less protection than a
municipality." 	Rather, according to the Administrator, a new
four-factor test for such locally created entities was
enunciated and applied in Hampton Redevelopment and should be
applied here. 	We disagree with the Administrator.
In Hampton Redevelopment, the housing authority relied
solely on the statutory declaration of governmental purpose
contained in Code § 36-2(1) to establish that the operation
and maintenance of the housing development was a governmental
function. 	The housing authority did not challenge the trial
* The Commission, interpreting language in Hampton
Redevelopment, also argued that the governmental-proprietary
analysis was not applicable to it and that it was entitled to
the absolute immunity from tort liability enjoyed by
Chesterfield County because it was created by the county, not
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court's conclusion that, absent the statutory declaration, the
operation of the project would be "'as a normal matter, a
proprietary function.'" 	217 Va. at 36, 225 S.E.2d at 369.
This Court rejected the housing authority's argument and
concluded that maintaining and operating the housing project
was a proprietary function "under any interpretation of the
rules for determining whether a particular function is
governmental or proprietary." 	Id.
There is no indication in the Hampton Redevelopment
opinion that the Court either intended to, or did, establish a
new test for determining the nature of functions undertaken by
entities such as the housing authority. 	Consequently, Hampton
Redevelopment does not support the Administrator's contention
that entities such as the Commission should be afforded less
protection than municipalities in matters of tort immunity or
that a different standard should be applied to such entities
in considering matters of governmental or proprietary
functions. 	Therefore, in resolving the case before us, we
apply the same principles applied to municipalities.
Although the principles for differentiating governmental
and proprietary functions are easily recited, as we have often
noted, application of these principles "has occasioned much
by a municipality. 	This argument was not raised in the trial
court, and we do not consider it here. 	Rule 5:25.
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difficulty." 	Ashbury v. City of Norfolk, 152 Va. 278, 282,
147 S.E. 223, 224 (1929). 	Generally speaking, when the
allegedly negligent act is one involving the maintenance or
operation of the service being provided, the function is
deemed to be proprietary. 	Thus, a housing authority was not
entitled to immunity because the alleged negligence — the
location, installation, and maintenance of an electric
"switching point box" — was part of the operation and
maintenance of the housing project and therefore involved a
proprietary function of the housing authority. 	Hampton
Redevelopment, 217 Va. at 32, 225 S.E.2d at 366.
In contrast, we have held that municipalities are immune
from tort liability based on allegations of negligence in the
design of roads or streets or in the provision of hospital,
ambulance, garbage, and emergency street clearing services.
See Edwards v. City of Portsmouth, 237 Va. 167, 375 S.E.2d 747
(1989); Fenon v. Norfolk, 203 Va. 551, 125 S.E.2d 808 (1962);
City of Norfolk v. Hall, 175 Va. 545, 9 S.E.2d 356 (1940);
Ashbury, 152 Va. 278, 147 S.E. 223; Long, 58 Va. (17 Gratt.)
375. 	The allegations of negligence in those cases involved
acts performed in conjunction with the direct provision of the
governmental service. 	We variously described the functions at
issue as exercises of a municipality's discretion, Long, 58
Va. (17 Gratt.) at 379, activities undertaken for the common
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good, id., or in the interest of public health and safety,
Edwards, 237 Va. at 171, 375 S.E.2d at 750, and exercises of
powers "delegated or imposed" upon the municipality. 	Id., 375
S.E.2d at 749.
The Administrator argues that the operation of the
nursing home in this case is a proprietary function because
fees were charged, the nursing home was not available for the
benefit of all Chesterfield residents but "only a select few"
(as well as non-Chesterfield County residents), the same
service was available from private vendors, the nursing home
chiefly served the poor rather than a general public need, and
was "designed to privatize the County's nursing home
business." 	These factors, as the Administrator correctly
contends, were identified in Hampton Redevelopment as indicia
of a proprietary function. 	However, as noted above, these
factors did not create a new test and were not contested
matters in that case.
More importantly, many of these same characteristics were
raised and rejected as relevant indicia of proprietary
functions in a subsequent case. 	In Edwards, the appellant
argued that the City-provided emergency ambulance service was
a proprietary function because such service was not needed for
the health, safety, and welfare of the City, fees were charged
for the service, the service benefited only those who chose to
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use and pay for it rather than the general public, and the
City was not the only provider of emergency ambulance service.
237 Va. at 170, 375 S.E.2d at 749. 	The Court in Edwards
rejected these arguments and stated that the test for
establishing a proprietary function "cannot be whether the
same thing is done by private entities" or whether a fee is
charged. 	237 Va. at 171-72, 375 S.E.2d at 750. 	Rather the
test applied by the Court in Edwards was "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." 	Id. at 172,
375 S.E.2d at 750.
In light of the holding in Edwards, the Administrator's
argument that the Commission was engaged in a proprietary
function cannot be sustained simply on the basis that the
Commission charged a fee and provided a service which was not
available to every citizen in the county and was also
available from private sources.
Edwards is also instructive because of another similarity
it shares with the instant case. 	In Edwards, former Code
§ 32.1-156 required the City to make a finding that the
ambulance services were necessary to preserve, protect, and
promote public health, safety, and general welfare prior to
authorizing the ambulance service. 	In making that finding and
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authorization, the City, according to Edwards, exercised its
police powers and "the governmental aspect of the undertaking
[was] controlling." 	237 Va. at 172, 376 S.E.2d at 750.
As in Edwards, prior to creating the Commission,
Chesterfield County was required to find that there was a
public need for the Commission and that the nursing services
were necessary to protect the public health and welfare. 	Code
§ 15.2-5202. 	The County's resolution stated that a public
need existed for the establishment of the Commission, that the
public health and welfare required the operation of public
hospital facilities, "particularly nursing homes," and that
the Commission was to operate the nursing home, hospital, or
health center facility. 	While these declarations are not
dispositive, they are more significant than the statutory
declarations justifying expenditure of public funds cited in
Hampton Redevelopment. 	As in Edwards, by enacting the
resolution creating the Commission, the local government
exercised its police power. 	Furthermore, the provision of
nursing home services at issue here is of the same nature as
the provision of emergency ambulance services in Edwards and
the hospital services in Long, and unlike the safe maintenance
and operation of a housing project at issue in Hampton
Redevelopment.
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Considering our prior cases and the record here, we
conclude that the provision of nursing services by the
Commission was not a ministerial act of a proprietary nature,
but an exercise of the County's police power for the common
good and, thus, was governmental in nature.
Finally, the Administrator argues that the trial court
erred in failing to hold an evidentiary hearing because the
record was insufficient to support a finding of immunity.
This argument was primarily based on the Administrator's
contention that the Commission "was required to introduce
evidence that it met the Hampton Redevelopment test." 	As
discussed above, that case did not establish a new test to be
applied here. 	Therefore, we reject these assignments of
error.
For the reasons stated, we conclude that the trial court
did not err in holding that the Commission was entitled to
immunity from tort liability in this case because the
operation of a nursing home was a governmental function.
Accordingly, the judgment of the trial court will be affirmed.
Affirmed.
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