Present: All the Justices 

BRIAN K. HAWTHORN 

 OPINION BY 

v. Record No. 960261 

CHIEF JUSTICE HARRY L. CARRICO 

 April 18, 1997 

CITY OF RICHMOND 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Randall G. Johnson, Judge 

 This is an appeal in a personal injury action brought by 

Brian K. Hawthorn (Hawthorn) against the City of Richmond (the 

City). Because the case was decided below on demurrer, we accept 

as true the well-pleaded facts set forth in Hawthorn's motion for 

judgment. Russo v. White, 241 Va. 23, 24, 400 S.E.2d 160, 161 

(1991). 

 The City owns and operates a park on Belle Island in the 

James River containing paths designed for bicycling, running, and 

walking. One of the paths slopes downward and, as it emerges 

from a wooded area, curves abruptly and sharply to the left along 

the edge of a steep cliff. On August 8, 1993, Hawthorn rode his 

bicycle along this path, fell over the cliff, and injured 

himself. At the time of the accident, no barrier or guardrail 

existed to prevent Hawthorn from plummeting over the cliff, and 

no signs were posted warning of danger. 

 Hawthorn's motion for judgment contained two counts. In 

Count I, entitled "Negligence and Nuisance," Hawthorn alleged 

that the City was negligent in failing "to use reasonable care to 

maintain the path in a reasonably safe condition for public use 

or, in the alternative, to warn of any dangers which might exist 

upon the path." Hawthorn also alleged in Count I that the path 
was "dangerous, faulty, defective and hazardous in itself." In 

Count II, entitled "Gross Negligence," Hawthorn alleged that the 

City's acts were "so willful and wanton as to evince a conscious 

disregard of the rights of others, as well as malicious conduct." 

 The City demurred on the ground that, at most, the motion 

for judgment stated a cause of action for simple or ordinary 

negligence and that Code § 15.1-291 grants a municipality 

immunity from all liability for damages resulting from injury 

caused by any act or omission constituting simple or ordinary 

negligence in the maintenance or operation of a park or other 

recreational facility. The trial court sustained the demurrer 

with respect to Count I and dismissed that count but overruled 

the demurrer with respect to Count II. Later, the court 

dismissed Count II on Hawthorn's own motion. We awarded Hawthorn 

an appeal from the final order dismissing Count I. 

 In pertinent part, Code § 15.1-291 provides as follows: 

 No city or town which shall operate any . . . park 

. . . or other recreational facility shall be liable in 

any civil action or proceeding for damages resulting 

from any injury to the person or property of any person 

caused by any act or omission constituting simple or 

ordinary negligence on the part of any officer or agent 

of such city or town in the maintenance or operation of 

any such recreational facility. Every such city or 

town shall, however, be liable in damages for the gross 

or wanton negligence of any of its officers or agents 

in the maintenance or operation of any such 

recreational facility. 

 The immunity created by this section is hereby 

conferred upon counties in addition to, and not 

limiting on, other immunity existing at common law or 

by statute. 

 Hawthorn contends that this Court "has long recognized a 

municipal corporation has no immunity for creating or maintaining 
a nuisance," yet the trial court "reversed over one hundred years 

of common law holding cities have no immunity for negligent 

creation of nuisances in any context." Hawthorn complains the 

trial court incorrectly interpreted Code § 15.1-291 "to grant 

nuisance immunity in the operation of recreational facilities, 

even though the statute fails to mention causes of action for 

nuisance and refers only to acts or omissions caused by simple or 

ordinary negligence." 

 Hawthorn argues that in sustaining the City's demurrer with 

respect to Count I, the trial court improperly emphasized the 

portion of the statutory language relating to "injury . . . 

caused by . . . negligence" and "essentially treated [his] cause 

of action for nuisance as a cause of action for negligence." He 

seeks to recover, Hawthorn says, not for an injury caused by 

negligence but for one caused by "a condition hazardous in itself 

 -- i.e., a nuisance," and Code § 15.1-291 "limits immunity to 

injuries caused by acts constituting simple or ordinary 

negligence and does not apply to injuries caused by a nuisance." 

 Hawthorn acknowledges that when a municipality is authorized 

by law to perform a particular act, it cannot be held liable for 

maintaining or operating a nuisance unless the act is negligently 

performed. City of Newport News v. Hertzler, 216 Va. 587, 595, 

221 S.E.2d 146, 151 (1976);1

 City of Virginia Beach v. Virginia 

 

 1 On brief, Hawthorn says that this Court failed to 

apply Code § 15.1-291 in Hertzler and that this failure 

suggests "the statute does not grant immunity from 

liability for creating a nuisance." However, Code 

§ 15.1-291 was not in issue in Hertzler; it was not 

cited in the briefs filed by the parties in that case 

and was not mentioned in the opinion. 
Beach Steel Fishing Pier, Inc., 212 Va. 425, 427, 184 S.E.2d 749, 

750-51 (1971). Hawthorn does not question the authority of the 

City to maintain and operate the park, but he argues that 

negligence and nuisance are distinct causes of action and that 

reliance on negligent acts does not transform a nuisance cause of 

action into a negligence cause of action. "Likewise," Hawthorn 

opines, "the fact negligent acts created the alleged nuisance 

here does not mean § 15.1-291 applies to an injury caused by a 

nuisance."2

 We agree with Hawthorn that, ordinarily, a municipal 

corporation has no immunity from liability for injury caused by a 

nuisance. City of Portsmouth v. Weiss, 145 Va. 94, 109, 133 S.E. 

781, 786 (1926); see Chalkley v. City of Richmond, 88 Va. 402, 

409, 14 S.E. 339, 341-42 (1891). We are of opinion, however, 

that in the enactment of Code § 15.1-291, the General Assembly 

has created a clear exception to the no-immunity rule in nuisance 

actions against municipalities so far as recreational facilities 

are concerned and thus has abrogated the common law to that 

extent. See Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 

301, 302 (1988). 

 We also agree with Hawthorn that nuisance and negligence are 

distinct legal concepts. Chapman v. City of Virginia Beach, 252 

 

 2 In support of his argument in the text, Hawthorn 

cites Taylor v. City of Charlottesville, 240 Va. 367, 

397 S.E.2d 832 (1990). But Taylor involved a nuisance 

in the form of a dangerous condition adjacent to a 

public highway, not in a recreational facility, and the 

case was decided on common law principles, not under a 

legislative provision similar to Code § 15.1-291. 

Hence, Taylor is inapposite. 
Va. 186, 192, 475 S.E.2d 798, 802 (1996).3

 But it does not 

obliterate the distinction between the two concepts to say, as it 

must be said, that negligence is an essential element or 

component of nuisance when one seeks to hold a municipality 

liable for maintaining or operating a nuisance. 

 We further agree with Hawthorn that Code § 15.1-291 does not 

mention a cause of action for nuisance by name. However, the 

statute states that the immunity granted therein applies in "any 

civil action or proceeding," and this language is broad enough to 

encompass actions for both negligence and nuisance. 

 In this case, the negligence representing the essential 

element or component of Hawthorn's nuisance cause of action is 

the City's failure to provide a barrier or guardrail to prevent 

him from plummeting over the cliff and the failure to post signs 

warning of the presence of danger. It was these very acts or 

omissions that caused Hawthorn's injury, and since they were 

pleaded in Count I as constituting only simple or ordinary 

negligence, the City is entitled to the grant of immunity 

provided by Code § 15.1-291. 

 Hawthorn argues, however, that it is improper to interpret 

Code § 15.1-291 as applicable to any civil action "'in which 

negligence is a component or element.'" Hawthorn says that "the 

 

 3 Hawthorn states on brief that this Court's 

guidance in Chapman "on the distinction between a cause 

of action for negligence and a cause of action for 

nuisance casts light on the issue at bar." However, in 

Chapman, we did not address the "issue at bar" because 

it was "not [then] ripe for resolution." 252 Va. at 

193, 475 S.E.2d at 802. 
mere fact negligence is an element of a cause of action for 

nuisance against a city should not affect the application of 

§15.1-291 because, on its face, it applies to damages caused by 

negligence alone and does not refer to a cause of action for 

nuisance." Hawthorn submits that if the General Assembly "had 

intended to include actions in which negligence was merely a 

component or element . . . it could have included those actions 

under the statute." The General Assembly did not make that 

inclusion, Hawthorn submits, "because the purpose of the statute 

was merely to create a higher standard of proof in negligence 

cases, not in nuisance cases." 

 In Frazier v. City of Norfolk, 234 Va. 388, 362 S.E.2d 688 

(1987), we discussed the General Assembly's intent in enacting 

what is now Code § 15.1-291. Although Frazier did not involve a 

cause of action for nuisance, what we said there concerning the 

Code section applies with equal force here: 

 The statute was enacted shortly after this Court 

decided Hoggard v. City of Richmond, 172 Va. 145, 200 

S.E. 610 (1939). There, in a 4-3 decision imposing 

tort liability upon a city, the Court held that a 

municipality acted in a ministerial and not 

governmental capacity when operating a bathing and 

swimming pool, although it did not derive any pecuniary 

advantage from the activity. . . . 

 [W]e conclude that the General Assembly intended to 

limit the civil liability of municipalities in the 

maintenance and operation of [any] recreational 

facilities to cases of gross or wanton negligence. 

That is what the legislature said in plain terms [and] 

there is no necessity to resort to maxims of statutory 

construction or to employ other devices to ascertain 

legislative intent. 

234 Va. at 391, 362 S.E.2d at 690. 

 Finally, Hawthorn contends that in his motion for judgment, 
he alleged a cause of action for the "negligent creation of a 

nuisance, in addition to the [negligent] maintenance and 

operation thereof," and that Code § 15.1-291 "grants immunity 

only for maintenance and operation of recreation facilities, not 

for the negligent creation of those facilities." Hence, Hawthorn 

concludes, his claim for negligent creation "falls outside the 

statute's parameters of immunity." 

 It is not at all certain that Hawthorn's motion for judgment 

alleges a cause of action for the negligent creation of a 

nuisance, separate and apart from a cause of action for the 

negligent maintenance and operation of a nuisance. Only a terse 

statement in the concluding paragraph of Count I that he was 

injured "[a]s a proximate result of the negligence of the City in 

creating, maintaining, and opening the path to bicyclists," 

indicates that negligent creation is included as a basis for 

recovery. 

 Be that as it may, we will assume for the purposes of this 

discussion that the motion for judgment does state a cause of 

action for negligent creation. The fact remains that the only 

acts or omissions on the part of the City that Hawthorn alleges 

in his motion for judgment are the failure to provide a barrier 

or guardrail to prevent him from plummeting over the cliff and 

the failure to post signs warning of danger. Therefore, it is 

upon these acts or omissions that Hawthorn must rely to support a 

cause of action for the negligent creation of a nuisance. But 

they are the identical acts or omissions he must rely upon to 

support a cause of action for negligent maintenance or operation 
of a nuisance, for which, as demonstrated earlier in this 

opinion, the City is immune from liability. 

 We will not presume that when the General Assembly enacted 

Code § 15.1-291, it intended in circumstances like those present 

here that immunity would be granted with one hand and taken away 

with the other. Indeed, such a presumption would be improper in 

light of our conclusion in Frazier that the General Assembly 

intended in its enactment of Code § 15.1-291 "to limit the civil 

liability of municipalities in the maintenance and operation of 

[any] recreational facilities to cases of gross or wanton 

negligence." 234 Va. at 391, 362 S.E.2d at 690. It would thwart 

this legislative intent to say now that municipalities, when 

creating recreational facilities, have no immunity from liability 

for the identical acts or omissions from which they would be 

immune when maintaining or operating the same facilities. 

Accordingly, we reject Hawthorn's argument that his claim for 

negligent creation "falls outside the statute's parameters of 

immunity." 

 For the reasons assigned, we will affirm the judgment of the 

trial court. 

Affirmed. 

JUSTICE STEPHENSON, with whom JUSTICE HASSELL joins, dissenting. 

 I respectfully dissent. 

 It is well established, as the majority acknowledges, that 

actions based upon negligence and actions based upon negligently 

creating and maintaining a public nuisance are separate and 

distinct causes of action. Chapman v. City of Virginia Beach, 
252 Va. 186, 192, 475 S.E.2d 798, 802 (1996); Taylor v. City of 

Charlottesville, 240 Va. 367, 372-74, 397 S.E.2d 832, 835-37 

(1990). Indeed, as Chief Justice Carrico said in Finley, Inc. v. 

Waddell, 207 Va. 602, 610, 151 S.E.2d 347, 353 (1966), "[t]he 

torts of nuisance and negligence are distinct and differ in their 

nature and consequences." 

 It is equally well established that a municipal corporation 

is immune from liability for claims caused by ordinary negligence 

if it is engaged in a governmental function; however, a municipal 

corporation is not immune from liability for negligence when it 

performs a proprietary function. Taylor, 240 Va. at 370, 397 

S.E.2d at 834. Also, a municipal corporation ordinarily is not 

immune from liability for negligently creating and maintaining a 

public nuisance whether it is performing either a governmental or 

a proprietary function. Id. at 373, 397 S.E.2d at 836. 

 Statutes in derogation of the common law are strictly 

construed, and the common law will not be considered changed by 

statute unless the legislative intent is clearly evident. 

Moreover, there is a presumption that no change in the common law 

is intended by the legislature; therefore, any change in the 

common-law rule is limited to what is expressly stated in the 

statute or what is necessarily implied therefrom. Indeed, 

"[w]hen an enactment does not encompass the entire subject 

covered by the common law, it abrogates the common-law rule only 

to the extent that its terms are directly and irreconcilably 

opposed to the rule." Boyd v. Commonwealth, 236 Va. 346, 349, 

374 S.E.2d 301, 302 (1988). Additionally, a court must presume 
that the General Assembly acted with full knowledge of the strict 

construction that must be given to a statute that is in 

derogation of the common law. Hannabass v. Ryan, 164 Va. 519, 

525, 180 S.E. 416, 418 (1935). 

 Code § 15.1-291 is in derogation of the common law, and the 

issue in the present case is whether the statute, when strictly 

construed, directly and irreconcilably changes the common law. 

Code § 15.1-291, in clear, plain language, limits immunity to 

injuries "caused by any act or omission constituting simple or 

ordinary negligence." (Emphasis added.) The statute makes no 

mention, however, of immunity from liability for nuisance, 

although the General Assembly is presumed to have known that 

negligence and nuisance are separate and distinct causes of 

action. 

 The majority, focusing on only a portion of Code § 15.1-291, 

states that the statute grants immunity in "`any civil action or 

proceeding'" and concludes that "this language is broad enough to 

encompass actions for both negligence and nuisance." I would 

agree with that conclusion if that were all the section states. 

As previously noted, however, the statute further states that the 

immunity granted is limited to injuries caused by simple or 

ordinary negligence. In enacting Code § 15.1-291, the General 

Assembly could have granted immunity from liability for injuries 

caused by the creation and maintenance of a nuisance. It did not 

do so, and I submit that this Court also should not do so.