PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee, 

JJ., and Compton, S.J. 

CITY OF CHESAPEAKE 

v. Record No. 032974 

HELEN CUNNINGHAM 

 OPINION BY 

JUSTICE G. STEVEN AGEE 

 November 5, 2004 

HELEN CUNNINGHAM 

v. Record No. 040002 

CITY OF CHESAPEAKE 

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Norman Olitsky, Judge 

Helen Cunningham filed a thirteen-count motion for judgment 

against the City of Chesapeake (“the City”) alleging that her 

August 30, 1998, miscarriage was caused by toxic water supplied 

by the City. Counts I through IX of the motion for judgment 

allege breach of contract, breach of warranty, battery, 

negligence, nuisance, trespass and violation of the Virginia 

Consumer Protection Act. Claims X through XIII allege claims of 

fraud. Cunningham claimed compensatory damages of $5,000,000 

and punitive damages of $1,000,000. 1 In response, the City 

 1

 Cunningham is lead plaintiff of a combined group of 214 

plaintiffs who allege that their miscarriages were caused by 

exposure to trihalomethanes in the City’s water on various dates 

from 1984 through 2000. These cases were combined for pretrial 

proceedings under the Virginia Multiple Claimants Litigation 

Act, Code § 8.01-267.1, et seq. Each plaintiff requested 

compensatory and punitive damages. The circuit court originally 
2

entered special pleas of sovereign immunity and the statute of 

limitations. 

The trial court sustained the plea of the statute of 

limitations as to Counts I through IX and dismissed those claims 

with prejudice. The trial court overruled the plea as to Counts 

X through XIII, denied the City’s claim of sovereign immunity, 

and refused to dismiss Cunningham’s prayer for punitive damages. 

Pursuant to Code § 8.01-267.8(B), the trial court made the 

requisite findings enabling the parties to proceed with an 

interlocutory appeal of the trial court’s judgment. 

 The City assigned error to the trial court’s denial of its 

special pleas of sovereign immunity and the statute of 

limitations as well as the refusal to strike Cunningham’s prayer 

for punitive damages. Cunningham assigned error to the dismissal 

of her non-fraud claims. We awarded the respective parties 

appeals as to all these issues and consolidated the cases for 

hearing.

I. BACKGROUND 

Shortly after the City was formed in 1963, it commissioned 

engineering studies to find a reliable water source that would 

sustain future development. At that time, the City purchased 

most of its municipal water supply from the Cities of Norfolk 

 

designated Merri Abernethy as the lead plaintiff; however, she 

nonsuited her case, and the court substituted Helen Cunningham 

as lead plaintiff. 
3

and Portsmouth, which was expensive and potentially inadequate. 

This study recommended the Northwest River as a source of 

drinking water. 

In May 1975, the U.S. Army Corps of Engineers granted the 

City a permit to withdraw water from the Northwest River and 

construct the Northwest River Treatment Plant (“the Plant”). 

The Plant was a conventional water treatment plant employing 

chlorine as a disinfectant, and its design was approved in 1977 

by the Virginia Department of Health. The Plant supplies most 

of the City’s municipal water. 

While the Plant was typical of its era, the Northwest River 

was an atypical water source, with then undiscovered problems. 

The river has high organic carbon levels. When chlorine, a 

commonly used water purification chemical, is added it reacts 

with the naturally occurring organic matter in the water to form 

large amounts of trihalomethanes (“THMs”). At the time the 

Plant was designed, laboratory instrumentation to measure THMs 

was not in use, and THMs were not regulated contaminants. 

 In 1979, the Federal Safe Drinking Water Act, 42 U.S.C. 

§§ 300f et seq., required the Environmental Protection Agency 

(EPA) to publish a maximum contaminant level (“MCL”) for each 

contaminant which “may have any adverse effect on the health of 

persons.” 42 U.S.C. § 300g-1(b)(1)(A)(ii) (1976 & Supp. II 

1979). THMs, the byproducts of water chlorination, were first 
4

identified for scientific analysis in 1974. National Primary 

Drinking Water Regulations; Disinfectants and Disinfection 

Byproducts, 63 Fed. Reg. 69,390, 69,394 (Dec. 16, 1998)(codified 

at 40 C.F.R. pts. 9, 141, and 142). In November 1979, the EPA 

set an annual average MCL for total trihalomethanes (“TTHMs”)2 of 

0.10 mg/L or 100 parts per billion (“ppb”). National Interim 

Primary Drinking Water Regulations; Control of Trihalomethanes 

In Drinking Water, 44 Fed. Reg. 68,624, 68,624 (Nov. 29, 1979) 

(codified at 40 C.F.R. pt. 141). These new regulations became 

binding on the City in November of 1983. Id. (providing an 

effective date for the trihalomethane MCL of four years from 

November 29, 1979, for water systems such as the City’s). 

Shortly after the Plant came online in March of 1980, the 

City began sampling for THMs, finding levels that averaged 

between 200 and 350 ppb. The City retained Malcolm Pirnie, 

Inc., an environmental engineering consulting firm, to evaluate 

viable alternatives to reduce TTHM levels by the November 1983 

regulatory effective date. 

Malcolm Pirnie found that only two methods could 

effectively reduce THMs from the Northwest River water. The 

 2

 Throughout this opinion, “THMs” will refer to the class of 

chemical compounds formed when chlorine reacts with organic 

material in water. “TTHMs” will refer to the group of 

compounds, including chloroform, bromodichloromethane, 

dibromochloromethane, and bromoform, as they are regulated by 

the EPA. 
5

City adopted both of Malcolm Pirnie’s proposed solutions: 

chlorine dioxide disinfection in the short term and air 

stripping towers in the long term.3

Chlorine dioxide replaced chlorine as a water treatment 

medium in August of 1983 and had the immediate effect of 

reducing THMM levels within regulatory limits. The air 

stripping system began operation in May 1985. Despite constant 

monitoring and adjustment of the disinfectant and air stripping 

process, the Plant still periodically experienced high levels of 

THMs. In August 1985, the City began adding ammonia after the 

air stripping process. The ammonia combined with any free 

chlorine in the water supply in order to prevent the chlorine 

from reacting with organic material and forming THMs. This 

combined treatment process enabled the City to generally meet 

the recognized THM limit of 100 ppb. 

 3

 The air stripping method was 70% of the cost of chlorine 

dioxide disinfection, but testing, designing and installing the 

air stripping towers would take at least a year. In order to 

meet the deadline for regulatory compliance, the City 

immediately began chlorine dioxide disinfection. Chlorine 

dioxide, unlike chlorine, combines less readily with the organic 

material in the Northwest River water, forming fewer THMs. In 

the air stripping system, water was pumped from the bottom of a 

tower through the top and then left to trickle down through a 

packing material. A high velocity air stream was simultaneously 

run through the water, effectively stripping THM compounds out 

of the water. The THMs exited the tower through vents. While 

the chlorine dioxide system sought to limit the formation of 

THMs, the air stripping system allowed them to form, and then 

separated them out of the water supply. 
6

In 1997, anticipating stricter regulatory limits on TTHMs 

of 80 ppb, the City determined to replace the air stripping 

towers with a reverse osmosis system. While the air strip system 

could meet the 100 ppb limit, the new limit was “unattainable” 

with that technology. 

The reverse osmosis system could meet the new TTHM limits, 

but the construction to modify the Plant necessitated an interim 

period during which neither the air strip or reverse osmosis 

system would be in operation, but chlorine disinfection would 

continue. Concerned that high TTHM levels during this period 

would push annual averages over 100 ppb and put the City in 

violation of applicable regulations, the City petitioned the 

State Health Commissioner (“Commissioner”) for a temporary 

exemption from the water quality regulations, particularly the 

TTHM limitations.4

On June 11, 1998, the Commissioner granted the City’s 

petition for exemption. In granting the exemption, the 

Commissioner found . . . 

. . . [(1)] a compelling need for construction necessary to 

modify the Northwest River Water Treatment Plant and to 

improve the safety of the drinking water it produces . . . 

[and (2)] the granting of an exemption to the TTHMs 

 

4

 The Virginia Administrative Code governs a petition for 

temporary exemption in this circumstance. See 12 VAC 5-590-150. 
7

standard will not result in an unreasonable risk to the 

consumers’ health.5

(Emphasis added). 

 In compliance with the exemption requirements, the City 

reported TTHM levels to the Virginia Department of Health 

(“VDH”), installed manganese contactors at the Plant to reduce 

TTHM levels, and posted public notice of the exemption in the 

Virginian-Pilot on July 9, 1998.6

The City began removing the air stripping towers at the 

Plant in preparation for the construction of the reverse osmosis 

system in February 1998. That same month, the Los Angeles Times

reported that an unpublished study by the Reproductive 

Epidemiology Section of the California Department of Health 

Services (“the California study”) found that daily consumption 

of more than five glasses of water with TTHM levels greater than 

75 ppb increased the risk of spontaneous abortion for women in 

 5

 Additionally, the Virginia Department of Health (“VDH”) 

placed the following conditions on the City: follow a schedule 

of compliance developed by VDH; monitor and report the 

concentration of TTHMs in the water supply as prescribed by VDH; 

operate the Plant in such a manner as to minimize TTHM 

production; and provide public notice as required by the Code. 

6

 The notice explained the origin of THMs in the City’s 

water supply and the known risks associated with consumption of 

THMs: increased risk of cancer from consuming 2 quarts of water 

daily that had THM levels in excess of 100 ppb over 70 years. 

As required, the notice provided an opportunity for a hearing on 

the exemption schedule. The City’s Director of Public 

Communications also issued a press release on the exemption on 

July 8, 1998, and notice of the exemption was inserted into 

water bills. VDH terminated the exemption on June 4, 1999. 
8

their first trimester of pregnancy. Within two months of 

receiving a copy of the California study, the City undertook an 

extensive campaign to inform the public of the possible risks to 

women, who might become or were pregnant, of the possible 

effects of consuming City water during the exemption period 

while the air stripping towers were removed and the reverse 

osmosis system was being constructed. 

The City and the Chesapeake Department of Health (“CDH”) 

issued three separate papers publicizing the water warnings: a 

Public Health Bulletin (“the Bulletin”) on March 31, 1998, and a 

news release (“the News Release”) and public notice (“the 

Notice”) on April 1, 1998. 

These warnings summarized the results of the California 

study, explained that the City’s TTHM levels would temporarily 

spike while the air stripping towers were off-line, and gave 

instructions for precautions pregnant women should take in the 

interim period. These precautions included using primarily 

bottled water or boiling water before drinking. In addition, 

the City set up recorded messages with health risk information 

and reports of weekly TTHM levels on the City’s Water Quality 

Hotline and Answerline, a CDH phone bank. 

CDH faxed the Bulletin to Chesapeake obstetricians and 

gynecologists, family practitioners, internists, CDH 

Supervisors, City officials, the Chesapeake Public School 
9

Administration, newspapers, television and radio station news 

departments, Chesapeake General Hospital officials, Cox 

Communications and VDH officials. On March 31, 1998, CDH faxed 

a copy of the Bulletin to Cunningham’s obstetrician, Dr. Timothy 

Hardy. 

Media outlets provided extensive coverage of the water 

warnings. There were 22 television news reports between March 

31, 1998 and May 4, 1998. The Virginian-Pilot included articles 

about the warning and Chesapeake’s water quality 15 times from 

April 1 though December 21. The Chesapeake Post ran one article 

on April 17. Some articles contained listings of fire stations 

where affected residents could pick up free drinking water. 

The City posted the Notice on its cable television bulletin 

board, at Public Utilities Department Offices, and on the City’s 

Internet homepage. The City distributed copies to City 

libraries and recreation centers, mailed 73,062 copies of the 

Notice to all postal patrons in Chesapeake and sent 13,620 

copies of the Notice home with elementary school students. 

Cunningham was a Chesapeake postal customer in April of 1998 but 

testified that she did not receive the Notice at that time 

“because people stole [her] mail.” 

The City began mailing copies of the Notice to new water 

customers in May of 1998 and continued until June 11, 1999. On 

September 21, 1998, Cunningham, then known by her maiden name, 
10

Helen L. Stringfield, signed up for City water service. Ms. 

Stringfield’s water service was activated on September 30, 1998. 

The New Customers Report run on October 1, 1998, lists 

“Stringfield[,] Helen L[.]” among 31 new customers. The 

Department of Public Utilities received this report on October 

2, 1998, and mailed a cover letter and Notice to Ms. Stringfield 

that day. 

Cunningham claims that the City’s water supply has 

historically exceeded regulatory limits for THMs, that the City 

knew that high levels of THMs were harmful to her health and 

that of her unborn child, that the City took steps to conceal 

both the high levels of THMs in the water and the deleterious 

effects on water consumers. She alleges that when the City 

finally undertook a public notice campaign, that effort was 

inadequate because the City failed to inform her individually of 

the consequences of consuming City water. 

The City argues that at the time the Plant was originally 

designed, THMs were not a recognized water contaminant and not 

regulated by the EPA. The City maintains it thereafter 

consistently planned alternative designs to the Plant and the 

water treatment system in order to meet the required regulatory 

standards. The City claims that the Plant’s water has met EPA 

specifications since the air stripping towers came online in 

1985. Further, the City argues that the California Study 
11

provided the first concrete evidence of a direct correlation 

between high TTHM levels and a specific health concern and that 

since receiving that study, the City has extensively publicized 

the risks to pregnant women. 

Cunningham admits that she is not alleging that her 

miscarriage was the result of the cumulative effects of THMs or 

the result of any exposure prior to conception. Cunningham 

learned she was pregnant in July 1998 and miscarried on August 

30, 1998. Thus, her claim of injury goes only to those acts 

occurring during the exemption period, which encompassed all of 

her pregnancy. 

II. ANALYSIS 

We initially address the issue of sovereign immunity 

because, if it applies, all of Cunningham’s claims are barred. 

A. The Law of Sovereign Immunity in Virginia 

“[T]he doctrine of sovereign immunity is ‘alive and well’ 

in Virginia.” Niese v. City of Alexandria, 264 Va. 230, 238, 

564 S.E.2d 127, 132 (2002) (quoting Messina v. Burden, 228 Va. 

301, 307, 321 S.E.2d 657, 660 (1984)). “Sovereign immunity is a 

rule of social policy, which protects the state from burdensome 

interference with the performance of its governmental functions 

and preserves its control over state funds, property, and 

instrumentalities.” City of Virginia Beach v. Carmichael Dev. 

Co., 259 Va. 493, 499, 527 S.E.2d 778, 781 (2000) (internal 
12

quotation marks omitted). A special plea of sovereign immunity, 

if proven, creates a bar to a plaintiff's claim of recovery. 

Tomlin v. McKenzie, 251 Va. 478, 480, 468 S.E.2d 882, 884 

(1996). 

The trial court conducted a hearing on the City’s special 

plea and received pleadings with attached exhibits from the 

parties. Where no evidence is taken in support of the plea, the 

trial court, and the appellate court upon review, must rely 

solely upon the pleadings (which includes the voluminous 

attachments in this case) in resolving the issue presented. Id. 

The existence of sovereign immunity is a question of law that is 

reviewed de novo. See Franks v. Ross, 313 F.3d 184, 192 (4th 

Cir. 2002) (citing Research Triangle Inst. v. Bd. of Governors 

of the Fed. Reserve Sys., 132 F.3d 985, 987 (4th Cir. 1997)). 

In the context of sovereign immunity, Virginia municipal 

corporations exercise two types of functions: governmental and 

proprietary. Gambrell v. City of Norfolk, 267 Va. 353, 357-58, 

593 S.E.2d 246, 249 (2004); Harrell v. City of Norfolk, 265 Va. 

500, 502, 578 S.E.2d 756, 757 (2003); Niese, 264 Va. at 238, 564 

S.E.2d at 132; Carmichael, 259 Va. at 499, 527 S.E.2d at 782; 

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

(1962). 

Governmental functions are powers and duties performed 

exclusively for the public welfare. Carmichael, 259 Va. at 499, 
13

527 S.E.2d at 782 (citing Hoggard v. City of Richmond, 172 Va. 

145, 147-48, 200 S.E. 610, 611 (1939)). A function is 

governmental if it entails the exercise of an entity's 

political, discretionary, or legislative authority. Carter v. 

Chesterfield County Health Comm'n, 259 Va. 588, 590-591, 527 

S.E.2d 783, 785 (2000). 

Proprietary functions are performed primarily for the 

benefit of the municipality. Carmichael, 259 Va. at 499, 527 

S.E.2d at 782 (citing Hoggard, 172 Va. at 147-48, 200 S.E. at 

611). If the function is a ministerial act and involves no 

discretion, it is proprietary. Carter, 259 Va. at 590-91, 527 

S.E.2d at 785. 

Sovereign immunity protects municipalities from tort 

liability arising from the exercise of governmental functions. 

Niese, 264 Va. at 238, 564 S.E.2d at 132 (citing Hoggard, 172 

Va. at 147-48, 200 S.E.2d at 611). There is no municipal 

immunity, however, in the exercise of proprietary functions. 

Gambrell, 267 Va. at 357-58, 593 S.E.2d at 249; Carmichael, 259 

Va. at 499, 527 S.E.2d at 782; Carter, 259 Va. at 590-91, 527 

S.E.2d at 785. 

 This court has consistently held that when a municipality 

plans, designs, regulates or provides a service for the common 

good, it performs a governmental function. See, e.g., Maddox v. 

Commonwealth, 267 Va. 657, 663, 594 S.E.2d 567, 570 (2004) (plan 
14

and design of a sidewalk); Bialk v. City of Hampton, 242 Va. 56, 

59, 405 S.E.2d 619, 621 (1991)(provision of emergency snow 

removal services); Taylor v. City of Charlottesville, 240 Va. 

367, 371, 397 S.E.2d 832, 835 (1990) (planning, designing, 

laying out of streets and roads); Edwards v. City of Portsmouth, 

237 Va. 167, 172, 375 S.E.2d 747, 750 (1989) (provision of 

ambulance services); Freeman v. City of Norfolk, 221 Va. 57, 60, 

266 S.E.2d 885, 886 (1980) (regulation of traffic through 

traffic signals); Transportation Inc. v. City of Falls Church, 

219 Va. 1004, 1006, 254 S.E.2d 62, 64 (1979) (regulation of 

traffic); Fenon, 203 Va. at 556, 125 S.E.2d at 812 (provision of 

emergency cleanup services); Ashbury v. City of Norfolk, 152 Va. 

278, 292, 147 S.E. 223, 227 (1929) (provision of garbage 

collection services). 

In contrast, routine maintenance or operation of a 

municipal service is proprietary. Gambrell, 267 Va. at 357-58, 

593 S.E.2d at 249; Carter, 259 Va. at 592, 527 S.E.2d at 785. 

See, e.g., City of Virginia Beach v. Flippen, 251 Va. 358, 362 

467 S.E.2d 471, 474 (1996) (maintenance of sidewalks); City of 

Richmond v. Branch, 205 Va. 424, 428, 137 S.E.2d 882, 885 (1964) 

(routine maintenance of existing streets); City of Norfolk v. 

Hall, 175 Va. 545, 552, 9 S.E.2d 356, 360 (1940) (faulty 

maintenance or street construction); Chalkley v. City of 

Richmond, 88 Va. 402, 409, 14 S.E. 339, 341 (1891) (failure to 
15

keep a sewer drain in repair and free from obstructions). 

B. The Application of Sovereign Immunity in this Case 

In response to the City’s plea of sovereign immunity, 

Cunningham contends that “the defense of sovereign immunity is 

unavailable” to a municipality operating a water system. In 

support of her argument, Cunningham cites our decisions in 

Richmond v. Virginia Bonded Warehouse Corp., 148 Va. 60, 138 

S.E. 503 (1927), and Woods v. Town of Marion, 245 Va. 44, 425 

S.E.2d 487 (1993).7

The City contends there is no unique rule for sovereign 

immunity claims related to a municipal waterworks, but that the 

principles of law are those applicable to other municipal acts. 

In that context, the City posits three grounds it claims 

establish sovereign immunity in this case. 

Initially, the City argues its action in supplying purified 

water was undertaken for the health, safety and welfare of its 

citizens and is thus an immune governmental function. Second, 

the City avers it “used its municipal discretion to design, 

construct and upgrade the . . . Plant,” which is a legislative 

function protected from liability. Finally, the City contends 

supplying purified water was the exercise of a power delegated 

 7

 Cunningham also cites our decision in Leonard v. Town of 

Waynesboro, 169 Va. 376, 193 S.E. 503 (1937), as authority for 

her position. However, that case involved the liability of a 

municipality under a theory of quantum meruit for the 

construction of a water line. 
16

by statute, Code § 15.2-2109, and is thus immune from claims as 

an exercise of the authority of the Commonwealth. 

The distinction between a municipality’s governmental and 

proprietary functions is more readily stated in theory rather 

than applied in actual practice. “Although the principles for 

differentiating governmental and proprietary functions are 

easily recited, as we have often noted, application of these 

principles has occasioned much difficulty.” Carter, 259 Va. at 

592, 527 S.E.2d at 785 (citing Ashbury, 152 Va. at 282, 147 S.E. 

at 224) (internal quotation marks omitted). Nonetheless, 

because we conclude the acts complained of by Cunningham were 

within the exercise of the City’s discretionary legislative 

powers and thus a governmental function, we find the trial court 

erred in failing to sustain the City’s plea of sovereign 

immunity. 

Cunningham grounds her argument to bar the application of 

sovereign immunity on language first found in Richmond v. 

Virginia Bonded Warehouse Corp. 

[T]he operation of a water department for the purpose 

of supplying water for domestic and commercial 

purposes is a private or proprietary right, and for 

negligence in such operation a municipality is liable 

in like manner as a private individual. 

148 Va. at 70-71,138 S.E. at 506. 

 In Richmond, the plaintiff sought recovery against the City 

of Richmond for damages caused by the malfunction of its 
17

sprinkler system when a city employee negligently turned on the 

water supply to the sprinkler system when it was under repair, 

ruining the goods in the warehouse. 148 Va. at 68-69, 138 S.E. 

at 505-06. We found sovereign immunity did not apply to the 

negligent performance of a clearly ministerial act of routine 

maintenance. Id. at 72, 138 S.E. at 507. The planning and 

design of the municipal water system was not an issue in 

Richmond, so the analysis of sovereign immunity based on a 

discretionary legislative function was not before the Court. 

 Citing Richmond, we later held in Woods v. Town of Marion

that sovereign immunity did not apply to shield the Town from 

liability. 245 Va. at 47, 425 S.E.2d at 489. The Town failed 

to maintain its water pipes to prevent water from leaking onto a 

public street and forming ice that the Town subsequently 

neglected to remove for several weeks and by which the plaintiff 

was injured. Id. at 45, 425 S.E.2d at 488. Relying on these 

cases, Cunningham contends sovereign immunity cannot apply with 

regard to a municipal water system. We disagree. 

 Neither Richmond nor Woods established a special rule 

barring sovereign immunity in any case involving a municipal 

water system. These cases merely recognize that acts of 

negligence in routine maintenance of municipal water supply 

facilities are nonimmune ministerial acts of a proprietary 

function. By contrast, in Stansbury v. City of Richmond, 116 
18

Va. 205, 207, 81 S.E. 26, 27 (1914), we observed that “[t]he 

adoption of a plan for supplying a city . . . with water 

involves the exercise of a delegated governmental power; and an 

error of judgment with respect to the efficiency and adequacy of 

such systems is not in the first instance reviewable by the 

courts.” 

 We held in Stansbury that sovereign immunity shielded the 

City from liability for a claim of inadequate water pressure 

from the municipal waterworks. Id. at 209-10, 81 S.E. at 27-28. 

While the water pressure at the plaintiff’s home was initially 

inadequate, the City was reconfiguring its water system to 

correct the problem. Id. at 210, 81 S.E. at 28. In effect, the 

City was in a continuum of planning, designing and implementing 

the planned design of its municipal water service to provide 

appropriate water pressure. Sovereign immunity applied to 

protect the City because it was exercising its discretionary 

legislative power of designing the means to deliver water 

service. We quoted with approval the analysis in Johnston v. 

District of Columbia, 118 U.S. 19 (1886): 

The duties of the municipal authorities, in adopting a 

general plan of drainage, and determining when and 

where sewers shall be built, of what size and at what 

level, are of a quasi judicial nature, involving the 

exercise of deliberate judgment and large discretion, 

and depending upon considerations affecting the public 

health and general convenience . . . and the exercise 

of such judgment and discretion, in the selection and 

adoption of the general plan or system of drainage, is 
19

not subject to revision by a court or jury in a 

private action. 

Stansbury, 116 Va. at 209, 81 S.E. at 27 (citing Johnston, 118 

U.S. 19, 20-21 (1886)). 

 As Stansbury indicates, the planning, design and 

implementation of a municipal water system is no different than 

other municipal acts in the context of a sovereign immunity 

analysis. By contrast, the municipal actions in the cases cited 

by Cunningham involve routine maintenance or clerical acts 

devoid of any nexus to a discretionary governmental function of 

design or planning. Other than the fact that the acts in 

Richmond and Woods involved a water system, those claims are no 

different than those for negligent street maintenance or other 

clearly ministerial acts where sovereign immunity does not 

apply. 

 What we must determine is whether the City’s action to take 

down the air stripping towers and reconstruct the Plant for the 

reverse osmosis system, thereby temporarily creating higher TTHM 

levels during the exemption period covering Cunningham’s 

pregnancy and miscarriage, was a governmental or proprietary 

act. It is the City’s choice to change the design of its water 

treatment system which Cunningham has pled as the basis for the 

City’s liability. Specifically, Cunningham pled that the City 

was at fault in choosing the reverse osmosis system because “the 
20

City could have, but did not, use other methods that reduce or 

eliminate THM contamination . . . [and] alternate water 

treatment methods could and should have been used.” For the 

following reasons, we find the City’s action to be a 

governmental function in the exercise of its discretionary 

legislative powers. 

 The City’s decision to move from the air stripping system 

to the reverse osmosis system was made in the interest of the 

public health. In February of 1998, the California Study made 

the City aware that high TTHM levels had increased the risk of 

possible miscarriages. The CDH had informed the City that it 

was “in the best interests of the health of the citizens of 

Chesapeake that the City transition to the new reverse osmosis 

plant” because “the high organics will never dissipate” and if 

the transition were not made, the City would “always be faced 

with the risk of high THMs,” ultimately concluding that “the 

new plant poses a permanent solution to the problem and removes 

any future risk of spontaneous abortion related to THMs.” Thus, 

reverse osmosis could meet the new TTHM regulatory levels and 

the air stripping technology could not. In that context, the 

Commissioner determined in granting the City’s regulatory 

exemption that there was a “compelling need for construction 

necessary to modify the Northwest River Water Treatment 
21

Plant. . .to improve the safety of the drinking water it 

produces.” (Emphasis added). 

The City’s decision to remove the air stripping towers and 

to construct the reverse osmosis system, with the knowledge that 

TTHM levels would rise, was an exercise of the City’s 

legislative discretion and its inherent police power. “[T]he 

determination of the public improvements to be made by a 

municipality [is] a legislative function.” Leonard v. Town of 

Waynesboro, 169 Va. 376, 385, 193 S.E. 503, 507 (1937). 

Deciding that the long-term gains to Chesapeake residents 

outweighed the short-term potential dangers to the public 

health, the City undertook the improvements and made an effort 

to alleviate the danger to the public by widely publicizing the 

known hazards to women who were or might become pregnant. The 

Commissioner verified this decision as he “determined that the 

granting of an exemption to the TTHMs standard will not result 

in an unreasonable risk to the consumer’s health.” Municipal 

decisions regarding the determination of priorities directly 

related to the general health, safety and welfare of citizens 

are exercises of a governmental function. See Gambrell, 267 Va. 

at 359, 593 S.E.2d at 250. 

The City’s exercise of its legislative discretion to 

redesign the Plant by replacing the air stripping towers with 

the reverse osmosis facility is no different than a 
22

municipality’s design and planning of a roadway, even if other 

design alternatives were available. 

A municipal corporation, in selecting and adopting a 

plan for the construction of a public street, acts in 

a discretionary, governmental capacity and is immune 

from liability for injuries resulting from its errors 

in judgment made in that capacity. 

Taylor, 240 Va. at 371, 397 S.E.2d at 835 (citing Hall, 175 Va. 

at 551, 9 S.E.2d at 359). 

 Cunningham acknowledges on brief that “the City may have 

exercised discretion in establishing the Northwest River Plant,” 

but argues all acts after the initial design decision are per se

proprietary functions. We rejected that notion in Stansbury

where the City of Richmond was not in the initial construction 

of a water system but in a continuum of planning and redesigning 

the existing system just as the City did in the case at bar. We 

also find no authority for Cunningham’s proposition that 

municipal design and planning as a discretionary legislative 

function is frozen in time, never to be subject to redesign or 

planning at any point. 

The City’s ongoing redesign and planning of its municipal 

water system is no different than the design or redesign of its 

streets and other facilities that may change from time to time. 

Even assuming there could be elements of the operation of a 

water system mixed with the planning and design elements, we 

have noted on many occasions “when governmental and proprietary 
23

functions coincide, the governmental function is the overriding 

factor and the doctrine of sovereign immunity will shield the 

locality from liability.” Carmichael, 259 Va. at 499, 527 

S.E.2d at 782 (internal quotation marks omitted). 

Cunningham further alleges that the City did not provide 

adequate information of the water supply’s known risks to 

pregnant women. Like weighing priorities in making public 

improvements, the dissemination of information to the public is 

also a governmental function. Downs v. City of Southfield, 2001 

Mich. App. LEXIS 2057 at *2 (Mich. Ct. App. 2001) (nonprecedential decisions). See also Allen v. United States, 816 

F.2d 1417, 1423 (10th Cir. 1987) (concluding that the government 

was immune from liability for the failure of the Atomic Energy 

Commission administrators and employees to warn the public about 

possible dangers more fully than they had); Loughlin v. United 

States, 286 F. Supp. 2d 1, 23 (D. D.C. 2003) (finding that the 

Army's decision not to issue warnings about munitions burials is 

a protected policy judgment); Valdez v. United States, 56 F.3d 

1177, 1180 (9th Cir. 1995)(government decision not to bring the 

existence of a natural hazard to the attention of the public is 

discretionary). Accordingly, sovereign immunity also applies to 

the governmental function of providing notice and bars 

Cunningham’s claim in that regard. 

III. CONCLUSION 
24

 Because we find that the City’s redesign and planning of 

the Plant and its public information campaign regarding 

temporary risks associated with consuming City water were 

governmental functions, sovereign immunity applies to bar 

Cunningham’s claims. The trial court thus erred in denying the 

City’s plea of sovereign immunity.8

The judgment of the trial court will be affirmed in part as 

to the dismissal of counts I to IX of the motion for judgment. 

The judgment of the trial court will be reversed in part as to 

the failure to dismiss the remaining counts of the motion for 

judgment and the claim of punitive damages. Final judgment will 

be entered for the City. 

Affirmed in part,

reversed in part,

 and final judgment.

 8

 As the application of sovereign immunity bars all of 

Cunningham’s claims, it is unnecessary to address any other 

assignments of error. Furthermore, having determined the City’s 

acts were of a discretionary legislative function, we do not 

address the City’s other proffered grounds for the application 

of sovereign immunity.