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Sovereign Immunity Does Not Apply to Plaintiff’s Property Damage Claim Against Municipal Water Authority For Burst Pipe Because Maintenance and Operation of Sewer Line Is Proprietary, Not Governmental, Function

Robertson v. Western Virginia Water Authority
No. 130416 (Supreme Court of Virginia, January 10, 2014)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

Plaintiff Robertson brought suit against the Defendant owner of a sewer pipe, the Western Virginia Water Authority (the “Authority”), alleging that the Authority was negligent in its maintenance and operation of the sewer line. The sewer line had burst on real property owned by Robertson. The flow from the line caused the partial collapse of a retaining wall on Plaintiff’s property and allegedly caused extensive damage.

The Authority moved for summary judgment on the basis that operating and maintaining the sewer line is a governmental function and, therefore, as a municipal corporation, the doctrine of sovereign immunity precluded liability. The trial court agreed that the maintenance and operation of the sanitary sewer system was a governmental safety function and that governmental immunity applied to the Authority. The trial court granted the Authority’s motion for summary judgment, and Plaintiff appealed.

Plaintiff argued that the maintenance and operation of a municipal sewer system was a proprietary function; therefore, the Authority was not entitled to sovereign immunity. The Court explained that when the municipality plans, designs, regulates, or provides a service for the common good, it performs a governmental function. Thus, if the issue was negligence in the plan or design of the sewer system, the Authority would be immune from liability. By contrast, routine maintenance or operation of a municipal service is proprietary. A municipal corporation may be held liable, as a private person might be, for negligence in the exercise of its proprietary functions.

With regard to sanitary sewer systems, the Court had previously recognized that the obligation to establish and open sewers is a legislative duty, while the obligation to keep them in repair is ministerial. Further, there was recognized municipal liability where the property of private persons is flooded, either directly or by water being set back, and when resulting from the negligent failure to keep sewers in repair and free from obstructions. Applying those principles to the present case, the Court held that the trial court erred in holding that the Authority was entitled to sovereign immunity. The decision of the trial court was reversed and the case was remanded.