Decker v. Harlan

Present: 	All the Justices
GLADYS JANET DECKER
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. 	Record No. 992098 	June 9, 2000
THOMAS D. HARLAN, II, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford J. Taylor, Jr., Judge
I.
In this appeal, we consider whether Code § 15.2-1809 bars
a plaintiff's tort claims against the City of Hampton, which
operates the Hampton Coliseum, and its employee, a building
mechanic assigned to work at that facility. 	Code § 15.2-1809
states in relevant part:
"No city or town which operates any park,
recreational facility or playground shall be liable
in any civil action or proceeding for damages
resulting from any injury to the person or from a
loss of or damage to the property of any person
caused by any act or omission constituting ordinary
negligence on the part of any officer or agent of
such city or town in the maintenance or operation of
any such park, recreational facility or playground.
Every such city or town shall, however, be liable in
damages for the gross negligence of any of its
officers or agents in the maintenance or operation
of any such park, recreational facility or
playground."
II.
Plaintiff, Gladys Janet Decker, filed her motion for
judgment against the City of Hampton and its employee, Thomas
D. Harlan, II. 	Decker alleged that she sustained personal
injuries when a refuse truck, operated by Harlan, collided

with her van. 	The defendants, relying upon Code § 15.2-1809,
filed a plea of statutory immunity. 	The circuit court
conducted an evidentiary hearing, sustained the plea, and,
among other things, entered a judgment in favor of the
defendants. 	Decker appeals.
The following evidence was adduced at the evidentiary
hearing. 	On October 29, 1996, Decker was driving a van on
Magruder Boulevard near its intersection with Semple Farm Road
in the City of Hampton. 	While she was in her van, stopped at
a traffic light, a refuse truck operated by Harlan collided
with Decker's van, injuring her.
On the date of the accident, Harlan was employed as a
building mechanic for the City of Hampton and the Hampton
Coliseum. 	The Hampton Coliseum is a facility "that hosts
concerts, family shows, sports events, conventions, trade and
customer shows, and meetings." 	Harlan was required to remove
"the staging set up from . . . previous event[s], totally
clean the building, mark the floor and set up the tables and
the chairs and the displays."
A refuse truck was regularly used to remove trash that
accumulated in the Coliseum. 	The truck is owned by the City
of Hampton and "assigned by the City to the . . . Coliseum."
Harlan was required to remove the trash from the Coliseum by
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transporting the trash in the refuse truck to a steam plant
where the trash was incinerated.
Harlan testified that on the evening when the accident
occurred, he learned that the refuse truck that was assigned
to the Coliseum was full. 	He decided to drive the refuse
truck to the steam plant and empty the trash because an event
was scheduled to be held at the Coliseum the next day. 	The
accident happened while Harlan was driving the refuse truck to
the steam plant.
III.
Decker argues that the circuit court erred in holding
that Code § 15.2-1809 "shields both the City of Hampton and
the employee driver from civil liability for negligence
arising out of an accident, caused by a city employee while
driving a truck loaded with trash on its way from a
recreational facility to a steam plant, miles from the
facility, where the activity giving rise to liability did not
arise out of the maintenance or operation of the recreational
facility." 	Decker asserts that DePriest v. Pearson, 239 Va.
134, 387 S.E.2d 480 (1990), supports her contentions. 	We
disagree with Decker's assertions.
In DePriest, we considered whether a bus was a
"recreational facility" within the meaning of Code § 15.1-291,
the predecessor statute to Code § 15.2-1809. 	The Henrico
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County Department of Parks and Recreation sponsored a
recreational trip to a retail establishment in Williamsburg
for a group of citizens. 	The Department of Parks and
Recreation furnished one of its buses and a driver. 	En route
to the destination, the driver lost control of the bus, which
overturned. 	Two passengers who were injured in the accident
filed separate actions against Henrico County and its bus
driver. 	The circuit court held, in each case, that the
respective plaintiffs could not recover because former Code
§ 15.1-291 barred the plaintiffs' claims against the County
and its bus driver unless the operator of the bus was guilty
of gross negligence. 	DePriest, 239 Va. at 136, 387 S.E.2d at
481.
We disagreed with the circuit court in DePriest, and we
held that Code § 15.1-291 did not bar the plaintiffs' claims
because the bus was not a recreational facility within the
meaning of the statute. 	We observed that the bus driver's
sole argument was that he was entitled to the benefit of
former Code § 15.1-291 because he was operating a recreational
facility at the time the bus overturned. 	We stated,
"[o]bviously, the county was not operating a 'recreational
facility' when it was transporting passengers by bus to an
outing in Williamsburg. 	In these cases, the bus and Pearson's
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use of it simply served as a means of transportation." 	Id. at
137, 387 S.E.2d at 481.
Here, unlike the bus in DePriest, the Hampton Coliseum is
a recreational facility within the intendment of Code § 15.2-
1809. 	We have held that the statutory term "recreational
facility" contained in Code § 15.2-1809 is unambiguous and
means "a place for citizens' diversion and entertainment. 	It
is a place . . . where members of the public are entertained
and diverted, either by their own activities or by the
activities of others." 	Frazier v. City of Norfolk, 234 Va.
388, 392, 362 S.E.2d 688, 690 (1987).
We must now consider whether Harlan's act of driving the
refuse truck to the steam plant was a part of the "maintenance
or operation" of the Coliseum within the intendment of Code
§ 15.2-1809. 	This inquiry is a mixed question of law and
fact, and, therefore, the circuit court's conclusions are not
binding on this Court. 	See Wilder v. Attorney Gen., 247 Va.
119, 124, 439 S.E.2d 398, 401 (1994); Richmond Newspapers,
Inc. v. Gill, 224 Va. 92, 95, 294 S.E.2d 840, 841 (1982).
As we have already stated, Harlan's job responsibilities
required that he empty the refuse truck by driving it to a
steam plant where the trash would be removed and incinerated.
Joseph Tsao, director of the Hampton Coliseum, testified that
the City could not operate the Coliseum unless the trash was
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removed and that trash removal was "a part of the normal
maintenance of the building." 	A food festival was scheduled
to be held at the Hampton Coliseum the day after the accident,
and Harlan needed to empty the refuse truck in preparation for
that event. 	The refuse truck that Harlan was operating when
the accident occurred was assigned to the Hampton Coliseum for
the specific use of transporting trash, generated by events at
the Coliseum, to the steam plant for incineration. 	We hold
that the removal of trash created by the use of the
recreational facility was a necessary and essential aspect of
the maintenance or operation of the Coliseum and, thus, Code
§ 15.2-1809 bars Decker's claims.*
In view of our holding, we need not consider Decker's
remaining arguments. 	Accordingly, we will affirm the judgment
of the circuit court.
Affirmed.
* Decker does not argue and, therefore, we do not consider
whether Code § 15.2-1809 affords immunity to an employee of a
city, such as Harlan.
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