
    CIRCUIT COURT OF WARREN COUNTY
    Sven Mjornell et al. v. Town of Front Royal
    February 20, 1997
    Case No. (Law) 96-286
   By Judge John E. Wetsel, Jr.

This case came before the Court on February 18,1997, on the Defendant’s Demurrer. Robert D. Roadman, Esquire, appeared for the Plaintiff; and Mary McGowan, Esquire, appeared for the Defendant.

I. Statement of Material Facts

The plaintiffs are homeowners in the Town of Front Royal, Virginia. Front Royal is a municipal corporation, and it operates a sewer system in the town.

The Plaintiffs have sued the town alleging negligent design, construction, and maintenance of the sewer lines, which they claim caused the sewer to overflow damaging their property.

The town has demurred on the basis of sovereign immunity claiming that the alleged acts are governmental functions of the town.

II. Conclusions of Law

In considering a demurrer the Court must apply “the settled rule that a demurrer admits the truth of all well-pleaded material facts. All reasonable inferences fairly and justly drawn from the facts alleged must be considered in aid of the pleading.” Russo v. White, 241 Va. 23, 24, 400 S.E.2d 160 (1991), quoting Fox v. Custis, 236 Va. 69, 71, 372 S.E.2d 373 (1988). Accord CaterCorp v. Catering Concepts, Inc., 246 Va. 22, 431 S.E.2d 277 (1993).

The design of a sanitary sewer system is a governmental rather than a proprietary function, because it requires the exercise of discretionary powers and judgment by the municipal corporation. See Freeman v. City of Norfolk, 221 Va. 57, 60, 266 S.E.2d 885 (1980). Therefore, the town is immune from liability for alleged negligent design of the sewer system. However, the construction, operation, and maintenance of water and sewer systems are proprietary functions, for which the municipality may be liable for damages caused by its negligence. Hoggard v. City of Richmond, 172 Va. 145, 148, 200 S.E.2d 610 (1939). This rule was applied in Woods v. Town of Marion, 245 Va. 44 (1993) (negligence in failing to maintain waterworks and streets were proprietary functions).

III. Decision

Upon consideration whereof, it is adjudged and ordered that:

1. Defendant’s Demurrer to the negligent design allegations is sustained.

2. Defendant’s Demurrer to the negligent construction and maintenance claims is overruled.  