PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., and Carrico, S.J. 

GORDON FLETCHER HARRELL, JR. 

 OPINION BY 

v. Record No. 021419 JUSTICE DONALD W. LEMONS 

 April 17, 2003 

CITY OF NORFOLK 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Junius P. Fulton, III, Judge 

In this appeal, we consider whether the trial court erred 

by granting the City of Norfolk’s special plea in bar and 

dismissing a motion for judgment for personal injuries on the 

ground that the alleged negligence concerned maintenance of a 

traffic regulatory device which involves a discretionary 

governmental function, invoking sovereign immunity from suit. 

I. Facts and Proceedings Below 

On August 30, 1999 at approximately 2:30 p.m., Gordon 

Fletcher Harrell, Jr. (“Harrell”) was crossing the intersection 

of Ocean Avenue and Cape View Street in the City of Norfolk. He 

slipped and fell while walking on the surface of white material 

used to mark the pedestrian cross-walk. 

Harrell filed a motion for judgment against the City of 

Norfolk (the “City”) requesting damages for personal injuries, 

alleging that the City had failed to safely maintain its streets 

and cross-walks, or in the alternative, that it had failed to 

warn pedestrians of any unsafe conditions. In answers to the 
City’s requests for admissions, Harrell admitted that the 

“slippery or slick condition of the material used for the 

pedestrian walkway” was “a contributing factor” to his fall. 

The trial court granted the City’s special plea in bar and 

dismissed Harrell’s motion for judgment, holding that the City 

had immunity from suit because “the roadway marking which 

allegedly caused the plaintiff’s injury was a traffic regulatory 

device whose installation and maintenance was part of the City’s 

governmental function of the regulation of traffic.” Harrell 

appeals the adverse judgment of the trial court. 

II. Analysis 

A municipality’s immunity from suit depends on whether it 

was exercising a governmental or proprietary function. 

In Virginia a municipal corporation is 

clothed with a two-fold function — one 

governmental and the other proprietary. A 

municipality is immune from liability for failure 

to exercise or for negligence in the exercise of 

its governmental functions. It may be liable, 

just as a private individual or corporation, for 

the failure to exercise or for negligence in the 

exercise of its proprietary functions. 

Therefore, if the operations of the City of 

Norfolk, during the course of which the plaintiff 

was injured, were being performed by the City in 

the exercise of a governmental function, the City 

is immune from liability and the plaintiff cannot 

recover. 

Fenon v. City of Norfolk, 203 Va. 551, 555, 125 S.E.2d 808, 811 

(1962) (internal citation omitted). 

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 Harrell acknowledges that the City was acting in its 

governmental capacity in the planning and construction of its 

public streets and sidewalks. Further, Harrell conceded in oral 

argument that the white marking pattern constituting the 

pedestrian cross-walk was a traffic regulatory device. However, 

Harrell argues that the City’s duty to maintain this cross-walk, 

and its streets in general, in a safe condition, free from 

defects and obstructions falls into the category of a 

proprietary function. To support his position, Harrell relies 

on City of Norfolk v. Hall, 175 Va. 545, 552, 9 S.E.2d 356, 359 

(1940), where we held that “[a]lthough [a city] is not an 

insurer against accidents on its streets, a city is liable for 

injuries sustained by reason of its failure to keep them in a 

reasonably safe condition for persons who exercise ordinary care 

and prudence for their own safety.” 

 However, we have previously held that “not every municipal 

activity related to street maintenance is proprietary.” 

Transportation, Inc. v. City of Falls Church, 219 Va. 1004, 

1005, 254 S.E.2d 62, 63 (1979). In Transportation, Inc., a 

faulty traffic signal caused an accident resulting in personal 

injury, giving rise to a suit against the City of Falls Church. 

We held that the City was entitled to governmental immunity 

because the regulation of traffic is a governmental function. 

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Id. at 1006, 254 S.E.2d at 64. In addition, we have held that 

roadway markings fall into the same category as traffic lights: 

Traffic lights, blinking lights, warning 

signals, roadway markings, railings, barriers, 

guardrails, curbings, and like devices are all 

designed to control and regulate traffic and to 

insure its orderly and safe flow on the streets. 

A determination of the need for such devices 

. . . calls for the exercise of discretion on the 

part of the city. In the exercise of that 

discretion and in making a judgment, the city is 

performing a governmental function and is not 

liable for its negligent performance of the 

function. 

Freeman v. City of Norfolk, 221 Va. 57, 60, 266 S.E.2d 885, 886 

(1980) (emphasis added). 

 Harrell argues correctly that a municipality’s failure to 

maintain roadway surfaces in a manner safe for travel is a 

proprietary function which does not entitle the City to 

governmental immunity. However, we draw a distinction between 

the potholes, depressions, and dips we have found to constitute 

a proprietary function and traffic regulatory devices which 

constitute a governmental function. In Hall, 175 Va. at 553-54, 

9 S.E.2d at 360, we held that repair of two severe depressions 

or dips in the road fell under the city’s maintenance duties and 

were a proprietary function. However, Hall, involved 

maintenance of the general road surface, but the case before us 

involves maintenance of a traffic regulatory device. 

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The traffic regulatory device at issue in this case is a 

pedestrian cross-walk which is delineated by two white lines 

that create a path for pedestrians to cross the street when they 

are directed to do so by the traffic signal. We stated the 

following in Transportation, Inc., 219 Va. at 1006, 254 S.E.2d 

at 64 (citations omitted): 

[T]he repair of a malfunctioning traffic signal 

bears some relationship to street maintenance and 

displays, therefore, a characteristic of a 

proprietary function. But a system of signals is 

designed to regulate traffic, and its dominant 

purpose is to reduce loss of life, limb, and 

property by preventing vehicular and pedestrian 

accidents at intersections. Thus, in the 

activity of maintaining traffic signals, as with 

the removal of the fallen trees in Fenon, there 

is involved “the purpose of protecting the 

general public health and safety,” a 

distinguishing feature of a governmental 

function. And, “where governmental and 

proprietary functions coincide, the governmental 

function is the overriding factor.” 

 Our holding in Transportation, Inc. resolves the question 

presented in this appeal. Accordingly, the judgment of the 

trial court will be affirmed. 

Affirmed. 

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