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Massenburg v. City of Petersburg

Supreme Court of Virginia

December 12, 2019





         In this case, we consider whether a municipality is entitled to sovereign immunity for negligence claims arising from a defective fire hydrant.


         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 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 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 ...

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