Look around. Snow, snow and more snow. Even the casual glance throughout the city and surrounding counties will reveal several snow plows and, as a result, several snow mountains. The plows are driving up and down every street trying to make a way for you to get to and from school, work, and local businesses to keep our local economy afloat.
As a society, we are thankful for the service they provide and, as a result, we exempt localities from any liability that might arise in the course of the emergency response. Generally, municipal corporations enjoy immunity from civil liability when performing governmental functions, but not when performing proprietary functions.
Stop. I may have just lost you, and you would not be alone. Judge Wetsel said “[w]here currents collide, whether at sea or at law, the main channel is frequently difficult to discern. Few areas of the law illustrate this potential turbidity than the confluence of the currents of proprietary and governmental functions in negligence actions against municipal corporations.” Smith v. Town of Front Royal, 61 Va. Cir. 5 (2003). This line hits the nail right on the head. Essentially, while there are some bright line rules, there are also some fuzzy gray-area rules. So let me try to explain a couple of these rules.
Maintenance of city streets and sidewalks is a proprietary function (no immunity) except when such maintenance of the city streets and sidewalks is done “for the common good, without the element of corporate benefit or pecuniary profit . . . , ” which makes it a governmental function (immunity). Balk v. City of Hampton, 242 Va. 56, 405 S.E.2d 619 (1991). Our Supreme Court has held that when the two functions collide, the governmental function will prevail. Taylor v. City of Newport News, 214 Va. 9, 197 S.E.2d 209 (1973).
In other words, if the snow plows are working to abate the snow and ice on the ground during the course of its response to that emergency condition created by the weather, then it is a governmental function and the city is immune from liability. But does the emergency response (and thus the governmental function) persist in perpetuity? Not according to Judge Wetsel. If the emergency has ended and normal conditions have resumed, the the duty to maintain streets and sidewalks will revert back to a proprietary function and the locality loses its immunity.
If the city creates a hazard on the street or sidewalk because of its emergency response, then it may be liable if it does not take action not fix the problem it created within a reasonable time period. As long as at the emergency condition no longer exists, then any clean up is proprietary and the city does not enjoy immunity. Then, the difficult task of proving liability, and disproving contributory negligence, begins.
These types of cases are very difficult, fact specific, and time sensitive. If you have been injured by a locality’s snow response, you should contact a personal injury lawyer immediately to discuss your case.