(a) The City should raise the affirmative defense that Sara is barred from bringing her action because she did not provide notice to the City’s mayor or attorney within six months of the injury. The City should also raise the defense of sovereign immunity in that it is not liable for injuries arising out of performance of government functions; however, this defense is not viable because the maintainenance of a recreational facility likely qualifies as a proprietary function for which sovereign immunity does not extend.

      The Virginia General Assembly allows for localities to be sued on a limited basis but requires notice of injury to be given to the locality’s mayor, chief executive, or City attorney within six months of the alleged incident. Otherwise, without adequate notice, the action is barred from suit against the locality.

      Here, Sara filed her complaint against the City of Roanoke on January 23, 2018 without first providing notice of her injury and impending suit against the City. Her injury occurred on May 1, 2017, and she was required to provide notice to the City’s mayor or attorney by November 1, 2017. Because she did not provide notice within the specified time period, her suit is barred in the Roanoke Circuit Court. The City should prevail on this defense because failure to adhere to the time limits (6 months for notice of the injury, and 18 months for the action to be brought in court after proper notice) constitutes an absolute bar to suit.

      The City will not prevail on its defense that it is shielded by sovereign immunity because the maintenance of a recreational facility is a proprietary function, not a government function where the City exercises discretion. The City, however, will not need to succeed on this defense to successfully demur against Sara’s complaint.

      (b) The City can raise the defense that it is not liable for ordinary negligence for the maintenance of recreational facilities because the General Assembly only holds localities liable for gross negligence for actions on and maintenance of recreational facilities. Because the City cannot be held liable for ordinary negligence on the tennis courts, which constitutes a recreational facility within the locality, the City will succeed on this defense.

      (c) The City may argue that their failure to maintain the court and remedy the slimy, moldy section of the court did not rise to the level of gross negligence because the defect was apparent, not hidden, and it was a natural defect. Moreover, the City did not have adequate notice of the tennis court’s condition.

      Gross negligence requires a showing of reckless disregard for an unreasonably high risk of injury. Whereas ordinary negligence calls for an objective standard that requires a party to act with reasonable care. In addition, a licensee is owed the duty of care to be warned of all known defects on the property; there is no duty to warn of unknown or unhidden defects.

      Here, the City’s conduct in failing to remedy the slimy, moldy condition on the tennis court does not rise to the level of gross negligence because it did not show a reckless disregard for an unreasonably high risk of injury. Moreover, the defect was unhidden since it covered a large 5 feet by 5 feet area; Sara is a licensee of the property because their is no business purpose for her to be present on the tennis courts, rather, the City grants a license to residents for ordinary use of the recreational facility. Thus, because the defect was unhidden, Sara could have discovered it herself and thereby avoided personal injury. Finally, the City did not have adequate notice of the defect because the March 2, 2017 was a vague notice of the general “terrible condition,” and per the City and supervisor’s standards outlined to the court, it routinely responded to “specific repair requests” while separately maintaining the courts annually. The City can probably successfully argue that this March 2017 notice did not constitute a specific repair request warranting their response but rather, it sounded more like a general complaint. In addition, the prior March 2015 and August 2015 complaints related to skateboarding kids causing damage on the courts and were filed well before Sara’s injury occurred in May 2017. Furthermore, the skateboarding damage does not seem to relate to the slimy, moldy condition of the court on which Sara was injured.

      Therefore, the City can successfully argue that its inaction and failure to properly maintain the tennis courts did not rise to level of gross negligence because they lacked notice of the defect, and it was not a hidden condition to Sara.

(a) The City should raise the affirmative defense of statute of limitations in response to Sara's complaint.

Pursuant to the Virginia Tort Claims Act, generally a City or County has complete immunity from tort claims raised against it by citizens. However, the Virginia Tort Claims Act also prescribes that there are circumstances in which a citizen can pursue a tort claim against a City for negligence. In order to file a tort claim against a city, a plaintiff is required to give notice of the claim to the city no more than six months after the date of the injury. Thereafter, the plaintiff is entitled to an eighteen month period to file suit in the appropriate venue.

Here, the best affirmative defense for the City of Roanoke is that Sara has failed to comply with the requirements of the Virginia Tort Claims Act and thus, the statute of limitations on her claim has run. Sara was injured on May 1, 2017. She had until November 1, 2017 to notify the City of her intention to file suit. She failed to do so. In fact, another two and a half months have passed since her injury prior to the City receiving any notice of her claim. The notice of the claim given to the City was also improper, as under the Virginia Tort Claims Act, cities are to receive notice prior to the institution of a law suit, not after as was the case here.

Therefore, the City should assert the affirmative defense that the statute of limitations on Sara's claim has expired and her suit is barred.

(b) The City should raise the defense of soverign immunity in response to Sara's complaint.

In addition to the notice requirement stated above, the Virginia Tort Claims Act prescribes that a city can only be held liable for negligence if the city is engaged in a proprietary function, i.e. a discretionary act. If the city is engaged in a governmental function, their sovereign immunity remains in full force and effect. Courts have held that even when the city is engaged in a proprietary function, a plaintiff asserting damages must prove more than mere ordinary negligence was committed by the city and/or city employee acting within the scope of his employment.

Here, the City should argue that while the maintainence of the Tennis Complex is likely a proprietary function of the City, the City did not commit gross negligence by failing to remove the moldy substance on the tennis court. The City responds to specific repair requests within 14 days of their entry. There had been no specific repair requests and no specific repairs made since the courts were completely resurfaced in October 2014. Prior to Sara's fall, few complaints were called in to the City relating to the courts. One from March 2015 related to a broken net. One made in August 2015 related to children skateboarding on and damaging the courts. The only other complaint relating to the courts was made in March 2017 in which the complaintant vaguely stated: "The courts at River's Edge are in terrible condition and need attention. Someone is going to get hurt." While further investigation of the complaint by the City would have been more prudent, the failure to do so does not rise to the level of gross negligence required by the Virginia Tort Claims Act. Because the City's Parks and Recreation Department was engaged in discretionary work, that is the cleaning and maintainance of their facilities, and did not commit gross negligence, the City should assert that the City is entitled to soverign immunity pursuant to the Virginia Tort Claims Act.

(c) The City might raise the defense that the City met its duty of care in response to the gross negligence claim.

Generally in a negligence claim, it is the responsibility of the plaintiff to prove each and every element of her prima facie case of by a preponderance of the evidence. The plaintiff must prove: (1) there was a duty; (2) the defendant breached that duty; (3) the defendant's breach was both the proximate and actual cause of plaintiff's injuries; and (4) the plaintiff suffered damages as a result. To prove gross negligence, the plaintiff must prove that the defendant acted in a way that is reckless and indifferent to the level of care that a reasonably prudent person would provide. If the plaintiff fails to prove one of the elements of the claim, the defendant must prevail. Additionally, if the defendant can provide evidence contrary to plaintiff's claim that proves by a preponderance of the evidence that one of the plaintiff's elements is not met, the defendant must prevail.

Here, the City can provide evidence that the City did not breach their duty and that the City certainly did not breach their duty to rise to the level of gross negligence. The City can provide evidence that the City responds to specific repair requests within 14 days of their entry. There had been no specific repair requests and no specific repairs made since the courts were completely resurfaced in October 2014. Prior to Sara's fall, few complaints were called in to the City relating to the courts. One from March 2015 related to a broken net. One made in August 2015 related to children skateboarding on and damaging the courts. The only other complaint relating to the courts was made in March 2017 in which the complaintant vaguely stated: "The courts at River's Edge are in terrible condition and need attention. Someone is going to get hurt." While further investigation of the complaint by the City would have been more prudent, the failure to do so does not rise to the level of gross negligence required to be proven by a preponderance of the evidence.

Therefore, the City can reasonably assert that it not only did not commit gross negligence, but also that the City met its burden of care in the upkeep of the Tennis Complex.