July 2015 Example Ten-point Answers to Virginia Essay Questions

July 2015 - QUESTION 2 – VIRGINIA BAR EXAMINATION

      The City of Falls Church, Virginia wishes to install, for use by the public, electric vehicle charging stations at its City-owned parking lots. City officials believe that electric powered vehicles are more energy efficient than those which are gasoline powered and that the City should actively encourage its citizens to switch to electric powered vehicles. Parking lot patrons who wish to use the charging stations will pay both for parking and for the charge to their hybrid or all-electric vehicles. Construction and related installation costs for each of three charging stations are projected to be $40,000.

      Section 15.2-967 of the Code of Virginia states:

  Any locality may provide off-street parking facilities and open them to the public, with or without charge, and when any locality constructs or has constructed any such facility, it may lease space therein for private commercial purposes which are necessary for sound fiscal management of the parking facility or which space is not suitable for parking.

      The Code of Virginia defines the term "locality" to mean "a county, city or town as the context may require." Va. Code Ann. §15.2-102. The City's charter does not mention public parking facilities or electric charging stations, and the above are the only sections of the Code of Virginia which are pertinent to this topic.

      Separately, the City, as owner and operator of the Broad Street public parking lot, has been sued by Maddie Madison in Circuit Court on the ground that the City breached its duties to her, as an invitee, to maintain the parking lot on a winter day and to keep it clear from ice and snow. Maddie alleges that, after parking her automobile in the City-owned lot at 10:00 a.m. on February 22, 2015, a sunny, clear day, she slipped and fell in the parking lot, sustaining extensive physical injuries.

      It is undisputed that on February 21 there had been a severe snowstorm, that on February 22 there was still an accumulation of four inches of snow, including in the parking lot, and that the high temperature was 33 degrees Fahrenheit, just barely above freezing. Maddie claims that the City's breach of its duties to keep the lot clear and warn her of danger was the proximate cause of her injuries.

      By February 22, City employees still had not cleared the Broad Street parking lot of snow and ice, because the City chose to devote its snow clearing efforts to secondary streets, once the primary streets were cleared. The City did not place any warning or "closed" signs at the parking lot. Maddie's attorney provided written notice of her claim to the City prior to filing the lawsuit.

      The City manager asks you, as the City Attorney, the following questions:

  (a) Is it legally permissible under Virginia law for the City to expend public funds to construct and to install, and thereafter to operate, a three-space electric vehicle charging station for use by the public for a fee within the City's Broad Street parking lot? Explain fully.
     
  (b) What two defenses can the City assert in good faith to Maddie's Complaint, and how should the Circuit Court rule on each? Explain fully.

July 2015 - QUESTION 2 – EXAMPLE ANSWER #1

Part (a): It does not appear that the City has the power to expend public funds to construct and install the vehicle charging stations.

Virginia adheres strictly to the doctrine known as "Dillon's Rule." Dillon's Rule states that a Virginia locality has no powers other than those expressly provided by the Virginia Code or its legislatively-enacted charter, unless otherwise necessary to carry out an express power or indispensable to the purpose for which the locality was created. A locality may, however, choose the method for exercising the express power, so long as it is not unreasonable.

Here, the charter makes no mention of any public parking facilities or of electric charging stations. In addition, the only Code provision that might be applicable only allows the locality to provide "off-street parking facilities," open them to the public for a charge (or for no charge), and allows the locality to lease the space for commercial purposes. Thus, there is no express power provided to the City to create, install, and operate charging stations (which are probably not considered "parking facilities"), nor does it appear to be inherent or necessary to carrying out the express power.

There is an argument that the City's use of the charging stations fits within the terms of this particular code provision, because it is an activity of a similar nature to providing parking facilities. However, when in doubt, Virginia will narrowly construe the terms of a Code provision in an effort to adhere to Dillon's Rule. Thus, because there is no express power provided, the City cannot open and operate the charging stations.

In addition, the City could argue that this is within its police power. Its argument would be based on the fact that the energy efficient cars are better for its citizens and the environment. However, the police power is strictly limited to actions for the health, safety, welfare, and morals of the citizens. The desire to encourage citizens to use electric cars is not, therefore, within the police power.

Thus, the City does not have the legal authority to open or operate the charging stations.

Part (b): The City can assert and prevail on each of two main defenses: (i) it retains its sovereign immunity and cannot be sued for this injury; and (ii) Maddie was contributorily negligent or assumed the risk of the injury. In addition, the City could argue that Maddie's notice fails to satisfy the notice requirements that are required in Virginia, but there are no facts to indicate that she failed to meet the statutory requirements (i.e., providing written notice of the place, date, and time of the injury within 6 months of the injury).

Sovereign Immunity: The City should argue that it retains its sovereign immunity in this case. A city or town can only be held liable for its negligence (i.e., the negligent acts or omissions of its employees) for proprietary functions, but it retains sovereign immunity for governmental functions. Governmental functions are those considered inherent in the legislative and executive powers of the government. For example, providing emergency services and designing streets are considered governmental functions. Proprietary functions, however, are not within the inherent nature of the government and are usually ministerial tasks like maintenance and operation duties. An example of a proprietary function would be street maintenance.

Here, the City should argue that the clearing of the streets and sidewalks on February 22 after a "severe snowstorm" the evening before was governmental. It was not a simple street-cleaning, but rather an emergency situation in which streets and lots needed to be cleared as much as possible, as quickly as possible. The City had to make an executive decision whether to provide those services to primary or secondary streets, and had to decide how much attention to focus on parking lots. Thus, it was an emergency decision (and thus, a governmental function) to provide the emergency services and in what manner, as was the decision as to where to place the appropriate signs.

Contributory Negligence: The City can also argue that Maddie was contributorily negligent. In Virginia, contributory negligence is an absolute bar to recovery (so long as the "last clear chance" doctrine is inapplicable). Here, the City can argue that Maddie was well aware of any potential dangers, since there was at least 4 inches of snow on the ground and in the parking lot. She should also have been aware of the very cold tempartures merely by being outdoors and should have known that ice and slick spots were a possibility. If the City can prove that Maddie was contributorily negilgent, she will be barred from recovery.

Again, it may be possible to argue that Maddie failed to meet the statutory notice requirements, but here she provided written notice to the City before filing suit. Since her accident was less than 6 months ago, she probably satisfied the requirements so long as she listed the date, time, and place of the injury.

Therefore, under the two defenses listed above, the City will probably prevail on both.


July 2015 - QUESTION 2 – EXAMPLE ANSWER #2

      To: City Manager
      From: City Attorney
      Date: July 27, 2015

      Dear City Manager:

      In repsonse to your inquiry, please see the detailed answers below.

      (a) It is not legally permissible for the City to expend public funds to construct and install the the charging stations or to operating the spaces by charging owners for the charge to their electric vehicles.

      All localities in Virginia (except where otherwise provides in a city's charter - which is rare) are subject to Dillon's Rule. Dillon's Rule states that localities only have powers that are expressly granted to it in its charter or the statutes of Virginia, those powers necessarily implied from the express grants of power, and powers that are absolutely essential to complete the nature and purpose of the locality expressed in its charter.

      The facts here tell us that nothing in the charter or any other Virginia statute provide the City with any power regarding off-street parking or electric charging facilities. The power to construct and maintain these charging stations, then, will need to come from the powers granted in Va. Code Ann. 15.2-102. It is possible that the powers can be necessarily implied from the grant of powers in the code provision, but any action by the city cannot contradict the terms of the power granted in the statute.

      Here, the statute provides broadly that any locality, which includes the city, may provide off-street parking facilities for use by the public and may charge for this services.

       The statute gives no more detail for the availability of off-street parking, but does address the ability to lease these facilities (addressed further below). Because this is a grant of power with few restrictions, it seems that the city can construct the off-street parking facility with the charging stations if it so chooses. The statute gives localities the authority to provide off-street parking and to charge for the parking. It does not express limits to how the parking facility is provided, and the question is whether providing off-street parking with charging stations is a necessarily implied power incident to the power to construct off-street parking. The manner in which the City chooses to provide the parking is left up to the city.

      However, adding the charging stations at a cost of $40,000 is not a necessarily implied power. A necessarily implied power, for example, would be to add concrete barriers/bumpers to the end of the parking spaces to let drivers know when they have reached the end of the space. Adding three charging stations at a cost of $13,333 a piece goes beyond the power to provide offstreet parking and charge for it. It is an end in and of itself -- and the facts indicate that the City officials did this to encourage use of electric cars. Providing parking is a power the City has; constructing electric chargining stations to encourage a particular type of car is not.

      Moreover, the statute express limits how the space in the parking facility may be leased past charging for parking. The statute says that it may be leased for private commercial purposes that are necessary for the sounds fiscal management of the parking facility or which is not suitable for parking.

      The charging stations are not shown by the facts to be necessary to pay for the parking facility. Arguably, the space that they occupy is not suitable for parking. It is not clear from the facts how large an area the stations occupy, but they are in the area where cars park. The best reading of the statute would seem to indicate that "space not suitable for parking" would mean an area completely separate from the parking facility.

      Moreover, because it is questionable whether the statute gives the City the broad power to install such charging stations, the temporary leasing of the stations to individuals using the stations is impermissible because the statute provides the specific situations where leasing space is permissible, and the stations seem to not fit in either of the two allowances for leasing.

       Therefore, it is unlikely that it is legally permissible for the City to undertake the installation and renting of the charging machines. It is important to remember, though, that because of Dillon's Rule, the argument will be based on the grant of power from the Code section. If the City does wish to proceed, it should base an arugment for this power utilizing the terms of the statute.

      (b) The first defense that the City can assert to Maddie's Complaint is a defense of sovereign immunity, although the Circuit Court should rule against the city.

      In Virginia, in contrast to counties, cities and towns enjoy sovereign immunity only for the governmental action that the city undertakes. In contrast, the city will not be immune from proprietary actions that the city undertakes.

      The determination of whether the action is propietary of governmental is whether the undertaking is something that would be normally provided by a government exclusively rather than a private entity. There can be some fine distinctions in making these determinations. For example, road design has been determined to be governmental, while road maintanence has been determined to be proprietary. Moreover, it has been found that where a city employee negligently injured a pedestrian with a machine while clear snow from the sidewalk was engaged in a governmental function.

      As the above indicates, the facts which gave rise to Maddie's claim present a close call. A parking gargage, while the city government can provide them pursuant to the code, is not something that is exclusively provided by the government. Private owners of parking garages are common. Moreover, this is an action for negligently maintaining the parking garage. If the maintanence of public roads is a proprietary functions, then it seems likely that the removal of snow, or rather the failure to remove snow and ice, from a parking garage falls on the propietary side of the line.

      Also, Maddie's suit could be construed as a nuisance claim for the City's failure to maintain the parking garage. While the City is partially immune from ordinary negligence claims, it is not immune from such nuisance claims.

      Therefore, the city's good faith defense of soverign immunity should be denied by the Circuit Court.

      Second, the City can defend on the grounds that it was reasonably diligent in removing the snow and that the snow and ice were known to Maddie, and therefore, it is not liable to Maddie for a failure to remove the incliment weather in time. The Court should rule in the City's favor on this defense.

      Even if Maddie is deemed and invitee, which is likely, the owner of the premises is only liable for inconspicuous dangerous conditions that it knew, or should have known about from reasonable inspection. The owner of the premises can also be relieved from liability here be placing adequate warnings on the premises to indicate the hazard.

      Here, it seems the City knew about the snow. It is also reasonable for the City to allocate its resources to take care of the roads before removing snow and ice from the parking lot. The city, however, may have failed to properly warn the of the snow and ice when it could have put up signs while clearing snow in other places.

      Moreover, the facts indicate that much snow had accumulated and that it was by no means inconspicuous. While Maddie may not have seen the particular spot of snow and ice she slipped on, the facts indicate that there was four inches of snow that had accumulated from the nasty storm and that the temperature was only 33 degrees. When Maddie went out to drive in the snow and walk from the parking lot, the snow would have been obvious to her and no warning would be necessary to tell her to take precaution.

      Therefore, the Circuit Court should rule in favor of the City on its defense that it wasreasonably diligent in clearing the snow and ice and that Maddie knew of the condition.