(a) Standard of care

      The city is only liable to Daisy if the city was grossly negligent in maintaining the park. Thus, the city owed Daisy a slight duty of care.

      Depending on the type of municipality, a private individual may bring a tort claim against the municipality. Cities can ordinarily only be sued for negligence in conducting proprietary functions as opposed to governmental functions, which they have sovereign immunity for. A governmental function is one which benefits the public as a whole and proprietary functions include actions of the city that do not involve discretionary review. Further, cities owe a different standard of care when the maintenance of a recreational facility is at issue. In these cases, when a plaintiff sues the city for negligence, the plaintiff must prove that the city was grossly negligent in its management of the recreational area.

      In this case, Daisy likely must prove that the city was grossly negligent because her claim involves the upkeep of a recreational facility. However, Daisy could argue that the city mantains and upkeeps the park, as opposed to a sub branch of the city solely responsible for maintaining parks and could try to impose an ordinary negligence standard. Nonetheless, she will likely be unsuccessful in that assertion and thus must prove gross negligence.

      (b) Motion to Strike the evidence

      The court should grant the city’s motion to strike the evidence. The city does not have sovereign immunity because the claim involves a proprietary claim against the city’s recreational facilities.

      While Daisy has properly notified the city of the claim, she has failed to make a prima facia case of gross negligence. First, plaintiffs must prove that the city or town had notice of some defect that led to the complained of injury. If the city or town was not on notice, a court will likely dismiss the claim. Further, if it appears on the face of the complaint that the plaintiff has failed to plead gross negligence, a court will also grant the motion to strike the evidence.

      In the case, Daisy has failed to make a prima facia case for gross negligence. First, she has not pled any facts showing that the city had prior notice of the hole. Indeed, the facts state that the hole was covered by a grassy area, meaning the city very likely did not have any notice of the hole. Further, the face of the complaint states that the City’s Park Department inspects the premises on a daily basis, showing that they likely comported with the required standard of care. Daisy also did not plead any facts showing that some action of the city actually caused the hole, which would give her negligence claim more legitimacy. Given that Daisy offered no evidence that the city had prior notice, and that the facts indicate that the hole was covered and difficult to discover even using reasonable care, the judge should grant the motion to strike the evidence.

      (c)If the accident occured on a sidewalk

      If the accident occured on a public sidewalk, then the judge likely should not grant the motion to strike the evidence.

      As previously mentioned, cities have sovereign immunity for governmental functions but not for proprietary functions. Governmental functions benefit the public at large. While the construction and planning of a sidewalk might qualify as a governmental function, it is likely that the maintenance of a sidewalk would qualify as a proprietary function, leaving the city open to negligence claims. Further, given that the claim would no longer involve the operation of a recreational facility, the city’s duty of care would be an ordinary duty of care.

      While there are not sufficient facts to indicate whether the city inspects its sidewalks with the same regularity, the judge would likely not grant the motion to strike the evidence because the standard of care would be higher than that for maintaining recreational facilities. Indeed, even if the city did still conduct regular insepctions, it is likely a judge would not grant the motion to strike as a defect in the sidewalk would be more obvious. However, the judge would also take into account whether the city had prior notice of the defect. Nonetheless, a court would likely leave the question of negligence to a jury and thus decline to grant a motion to strike the evidence.

      (a) The City owes a duty of care to Daisy not to be grossly negligence. Under the principle of sovereign immunity, the Commonwealth (including counties) and municaplities are liable for torts where the goverment has waived sovereign immunity. In Virginia, municipalities are generally liable for torts when performing proprietary functions but not when performing governmental functions. Governmental functions include the exercise of basic functions and powers such as running a police force, designing roads, or the like. Proprietary functions include activities in which the city exercises discretion, including the maintenance of roads, running of water works. An exception to this rule is when the city operates a recreational facility such as a public park. The city owes only a duty not to be grossly negligent when operating or maintaining a recreational facility.

      In this case, Daisy’s injury was caused when she was on the grounds of a public park owned and operated by the City, which is a recreational facility. Therefore, the exception applies and the City owes a duty not to be grossly negligence.

      (b) The Court should grant the motion to strike the evidence. A motion to strike the evidence should be granted when the nonmoving party has been fully heard, there are no disputes of material fact, and a reasonasble jury would not find for the nonmoving party. As explained above, the standard of care is gross negligence. A motion to strike the evidence is analogous to a federal JMOL. In this case, employees of the City performed routine maintenance of the park, which included daily inpsections of the park. There is no evidence that the hole was previously known. Thus, the City excercised a degree of care which was sufficient not to breach the gross negligence standard.

      (c) The outcome would probably remain unchanged if the accident occured on a public sidewalk outside the park: the Court would grant the City’s motion to strike the evidence.

      Side walk maintenance isa proprietary function, so the City would owe a standard of ordinary care to Daisy. If, like the grassy hole in the park, the hole on the sidewalk was not visible and its presence was unknown, and the City conducted routine inspections, then the city would not have breached that standard of care. If the hole were known to the City or should have been known, then the Court might find that the City breached the Duty

      By way of analogy, a private citizen owes a duty of ordinary care to invitees (e.g., members of the public), and the duty specifies only to warn or make safe hazards that are known or should be known. The City’s daily inspection demonstrates at least the degree of care than the one called for under an ordinary care standard, unless Daisy can prove the inspections were negligently performed. Therefore, the City would not have breached the ordinary care standard on for the same accident on a sidwalk.