
    CIRCUIT COURT OF THE CITY OF ROANOKE
    Michael G. Brizendine v. City of Roanoke
    September 17, 1997
    Case No. CL93-1326
   By Judge Robert P. Doherty, Jr.

Plaintiff car wreck victim alleges that Defendant City allowed its public road, which was slick, to become dangerously so when surface water flowed across it, partially caused by poor maintenance of the road shoulder, hot the alternative, Plaintiff claims that the slippery when wet road constitutes a public nuisance. Under both theories, Plaintiff contends that the slippery surface of die road contributed to his two vehicle accident. The Defendant City has ñled a plea of sovereign immunity and a demurrer. The Court sustains die City’s plea of governmental immunity, and die demurrer is rendered moot.

A municipality is liable in tort when it acts in a proprietary capacity but is immune from liability when it acts in a governmental capacity. Fenon v. City of Norfolk, 203 Va. 551 (1952). If die actions of the municipality are partially proprietary and partially governmental, then the governmental function is the overriding factor, and immunity applies. Bialk v. City of Hampton, 242 Va. 56 (1991). The planning and design of a mad, to include the choice of materials in its construction, as well as the design of die accompanying system of storm drainage ditches, come about through governmental or discretionary functions and not as a result of proprietary or ministerial action. Bialk supra. It is governmental action because it is done for the common good of all. Another way of putting it is that it is done for die benefit of public health, safety, and welfare, and not as a proprietary function or ministerial act

hi this case die surface water or storm waters flowing in die drainage ditch came over die road shoulders and onto the roadway making it slippery when wet The design of the roadway and control of storm waters fall into the governmental function of the municipality. The repair or maintenance of the shoulder of the road may toll into die category of ministerial or proprietary action, but when coupled with die governmental function, immunity applies.

There is also a statutory grant of immunity in Section 15.1-31, which as construed by Continental Casualty Co. v. Town of Blacksburg, 846 F. Supp. 483 (W.D. Va. 1993), immunizes a municipality from flooding or damage caused by water from a storm drainage system. Assuming that to be accurate, then the resulting or consequential damage and/or condition caused by the water on the public roadway from the storm drainage system is protected by statutory immunity. The same result is reached by concluding, as one must, that the control of storm waters is for die common good, and thus constitutes a governmental function which carries with it die grant of immunity.

Accordingly, die Defendant’s Plea of Sovereign Immunity is sustained, and both counts of the Plaintiffs Motion tor Judgment are dismissed, with prejudice. The demurrer is moot  