Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and 

Kinser, JJ., and Poff, Senior Justice 

VANCE W. CARTER, JR., ADMINISTRATOR OF 

THE ESTATE OF VANCE W. CARTER, SR., 

DECEASED 

v. Record No. 991870 OPINION BY JUSTICE ELIZABETH B. LACY 

 April 21, 2000 

CHESTERFIELD COUNTY HEALTH 

COMMISSION, D/B/A LUCY CORR 

NURSING HOME 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

 In this appeal, we consider whether the trial court 

properly concluded that a county health commission was immune 

from tort liability because it was entitled to the status of a 

municipal corporation and was performing a governmental 

function in the operation of a nursing home. 

 Vance W. Carter, Jr., Administrator of the Estate of 

Vance W. Carter, Sr., (the Administrator) filed a motion for 

judgment against the Chesterfield County Health Commission, 

d/b/a Lucy Corr Nursing Home, (the Commission) and others 

alleging that negligent acts of the Commission's employees in 

treating or failing to treat the decedent resulted in his 

death. The Commission filed a special plea of sovereign 

immunity. Based on the pleadings, memoranda, and argument of 

counsel, the trial court ruled that the operation of the 

nursing home by the Commission was a governmental function 

and, therefore, entitled to sovereign immunity. The trial 
court dismissed the Administrator's claim against the 

Commission and granted the Administrator's motions to non-suit 

the remaining defendants. We awarded the Administrator an 

appeal. 

The Commission is a political subdivision created by a 

locality pursuant to statutory authorization. We have held 

that such entities may be entitled to the status of a 

municipal corporation for purposes of immunity from tort 

liability in certain circumstances. Virginia Elec. and Power 

Co. v. Hampton Redevelopment and Housing Authority, 217 Va. 

30, 33, 225 S.E.2d 364, 367 (1976); Hampton Roads Sanitation 

Dist. v. Smith, 193 Va. 371, 377, 68 S.E.2d 497, 501 (1952). 

The parties generally agree that the Commission is entitled to 

the status of a municipal corporation. 

Municipal corporations are immune from tort liability 

when performing governmental functions, but are not immune 

when exercising proprietary functions. City of Richmond v. 

Long's Adm'rs, 58 Va. (17 Gratt.) 375, 379 (1867), rev'd on

other grounds, First Va. Bank-Colonial v. Baker, 225 Va. 72, 

301 S.E.2d 18 (1983). The principles to be applied in 

determining whether a municipality is engaged in a proprietary 

or governmental function for purposes of immunity are well 

established. A function is considered governmental if it is 

the exercise of an entity's political, discretionary, or 

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legislative authority. If the function is a ministerial act, 

"assumed in consideration of the privileges conferred by . . . 

charter," and involves no discretion, it is proprietary. Id.

 The parties also agree that the Commission would be 

entitled to immunity if the operation of the nursing home were 

a governmental function.* However, the Administrator asserts 

that the traditional analysis applied in determining whether a 

municipal function is proprietary or governmental is not 

applicable to entities such as the Commission because such 

"locally created commissions are further removed from the 

state" and, therefore, they "enjoy less protection than a 

municipality." Rather, according to the Administrator, a new 

four-factor test for such locally created entities was 

enunciated and applied in Hampton Redevelopment and should be 

applied here. We disagree with the Administrator. 

In Hampton Redevelopment, the housing authority relied 

solely on the statutory declaration of governmental purpose 

contained in Code § 36-2(1) to establish that the operation 

and maintenance of the housing development was a governmental 

function. The housing authority did not challenge the trial 

 *

 The Commission, interpreting language in Hampton 

Redevelopment, also argued that the governmental-proprietary 

analysis was not applicable to it and that it was entitled to 

the absolute immunity from tort liability enjoyed by 

Chesterfield County because it was created by the county, not 

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court's conclusion that, absent the statutory declaration, the 

operation of the project would be "'as a normal matter, a 

proprietary function.'" 217 Va. at 36, 225 S.E.2d at 369. 

This Court rejected the housing authority's argument and 

concluded that maintaining and operating the housing project 

was a proprietary function "under any interpretation of the 

rules for determining whether a particular function is 

governmental or proprietary." Id.

There is no indication in the Hampton Redevelopment

opinion that the Court either intended to, or did, establish a 

new test for determining the nature of functions undertaken by 

entities such as the housing authority. Consequently, Hampton 

Redevelopment does not support the Administrator's contention 

that entities such as the Commission should be afforded less 

protection than municipalities in matters of tort immunity or 

that a different standard should be applied to such entities 

in considering matters of governmental or proprietary 

functions. Therefore, in resolving the case before us, we 

apply the same principles applied to municipalities. 

Although the principles for differentiating governmental 

and proprietary functions are easily recited, as we have often 

noted, application of these principles "has occasioned much 

 

by a municipality. This argument was not raised in the trial 

court, and we do not consider it here. Rule 5:25. 

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difficulty." Ashbury v. City of Norfolk, 152 Va. 278, 282, 

147 S.E. 223, 224 (1929). Generally speaking, when the 

allegedly negligent act is one involving the maintenance or 

operation of the service being provided, the function is 

deemed to be proprietary. Thus, a housing authority was not 

entitled to immunity because the alleged negligence — the 

location, installation, and maintenance of an electric 

"switching point box" — was part of the operation and 

maintenance of the housing project and therefore involved a 

proprietary function of the housing authority. Hampton 

Redevelopment, 217 Va. at 32, 225 S.E.2d at 366. 

In contrast, we have held that municipalities are immune 

from tort liability based on allegations of negligence in the 

design of roads or streets or in the provision of hospital, 

ambulance, garbage, and emergency street clearing services. 

See Edwards v. City of Portsmouth, 237 Va. 167, 375 S.E.2d 747 

(1989); Fenon v. Norfolk, 203 Va. 551, 125 S.E.2d 808 (1962); 

City of Norfolk v. Hall, 175 Va. 545, 9 S.E.2d 356 (1940); 

Ashbury, 152 Va. 278, 147 S.E. 223; Long, 58 Va. (17 Gratt.) 

375. The allegations of negligence in those cases involved 

acts performed in conjunction with the direct provision of the 

governmental service. We variously described the functions at 

issue as exercises of a municipality's discretion, Long, 58 

Va. (17 Gratt.) at 379, activities undertaken for the common 

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good, id., or in the interest of public health and safety, 

Edwards, 237 Va. at 171, 375 S.E.2d at 750, and exercises of 

powers "delegated or imposed" upon the municipality. Id., 375 

S.E.2d at 749. 

The Administrator argues that the operation of the 

nursing home in this case is a proprietary function because 

fees were charged, the nursing home was not available for the 

benefit of all Chesterfield residents but "only a select few" 

(as well as non-Chesterfield County residents), the same 

service was available from private vendors, the nursing home 

chiefly served the poor rather than a general public need, and 

was "designed to privatize the County's nursing home 

business." These factors, as the Administrator correctly 

contends, were identified in Hampton Redevelopment as indicia 

of a proprietary function. However, as noted above, these 

factors did not create a new test and were not contested 

matters in that case. 

More importantly, many of these same characteristics were 

raised and rejected as relevant indicia of proprietary 

functions in a subsequent case. In Edwards, the appellant 

argued that the City-provided emergency ambulance service was 

a proprietary function because such service was not needed for 

the health, safety, and welfare of the City, fees were charged 

for the service, the service benefited only those who chose to 

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use and pay for it rather than the general public, and the 

City was not the only provider of emergency ambulance service. 

237 Va. at 170, 375 S.E.2d at 749. The Court in Edwards

rejected these arguments and stated that the test for 

establishing a proprietary function "cannot be whether the 

same thing is done by private entities" or whether a fee is 

charged. 237 Va. at 171-72, 375 S.E.2d at 750. Rather the 

test applied by the Court in Edwards was "whether, in 

providing such services, the governmental entity is exercising 

the powers and duties of government conferred by law for the 

general benefit and well-being of its citizens." Id. at 172, 

375 S.E.2d at 750. 

In light of the holding in Edwards, the Administrator's 

argument that the Commission was engaged in a proprietary 

function cannot be sustained simply on the basis that the 

Commission charged a fee and provided a service which was not 

available to every citizen in the county and was also 

available from private sources. 

Edwards is also instructive because of another similarity 

it shares with the instant case. In Edwards, former Code 

§ 32.1-156 required the City to make a finding that the 

ambulance services were necessary to preserve, protect, and 

promote public health, safety, and general welfare prior to 

authorizing the ambulance service. In making that finding and 

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authorization, the City, according to Edwards, exercised its 

police powers and "the governmental aspect of the undertaking 

[was] controlling." 237 Va. at 172, 376 S.E.2d at 750. 

As in Edwards, prior to creating the Commission, 

Chesterfield County was required to find that there was a 

public need for the Commission and that the nursing services 

were necessary to protect the public health and welfare. Code 

§ 15.2-5202. The County's resolution stated that a public 

need existed for the establishment of the Commission, that the 

public health and welfare required the operation of public 

hospital facilities, "particularly nursing homes," and that 

the Commission was to operate the nursing home, hospital, or 

health center facility. While these declarations are not 

dispositive, they are more significant than the statutory 

declarations justifying expenditure of public funds cited in 

Hampton Redevelopment. As in Edwards, by enacting the 

resolution creating the Commission, the local government 

exercised its police power. Furthermore, the provision of 

nursing home services at issue here is of the same nature as 

the provision of emergency ambulance services in Edwards and 

the hospital services in Long, and unlike the safe maintenance 

and operation of a housing project at issue in Hampton 

Redevelopment. 

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Considering our prior cases and the record here, we 

conclude that the provision of nursing services by the 

Commission was not a ministerial act of a proprietary nature, 

but an exercise of the County's police power for the common 

good and, thus, was governmental in nature. 

Finally, the Administrator argues that the trial court 

erred in failing to hold an evidentiary hearing because the 

record was insufficient to support a finding of immunity. 

This argument was primarily based on the Administrator's 

contention that the Commission "was required to introduce 

evidence that it met the Hampton Redevelopment test." As 

discussed above, that case did not establish a new test to be 

applied here. Therefore, we reject these assignments of 

error. 

For the reasons stated, we conclude that the trial court 

did not err in holding that the Commission was entitled to 

immunity from tort liability in this case because the 

operation of a nursing home was a governmental function. 

Accordingly, the judgment of the trial court will be affirmed. 

Affirmed.

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