Biggers v. Bald Head Island

• Decision Date: 15 September 2009
• Docket Number: No. COA08-249.,COA08-249.
• Citation: 682 S.E.2d 423
• Court: North Carolina Court of Appeals
• Parties: Howard BIGGERS III, Individually and as Administrator of the Estate of Howard Biggers, IV, Deceased, and Cindy Biggers, Plaintiffs, v. BALD HEAD ISLAND, a North Carolina Municipality; Bald Head Island Limited, a Foreign Limited Partnership; Bald Head Island Management, Inc.; Mitchell Island Investments, Inc., a Foreign Corporation, as General Partner of Bald Head Island Limited; and, Douglas "Bud" Odell, Defendants. Bald Head Island Limited, Defendant, Third-Party Plaintiffs, v. Timothy Matthews, Third-Party Defendant.

682 S.E.2d 423

Howard BIGGERS III, Individually and as Administrator of the Estate of Howard Biggers, IV, Deceased, and Cindy Biggers, Plaintiffs, v. BALD HEAD ISLAND, a North Carolina Municipality; Bald Head Island Limited, a Foreign Limited Partnership; Bald Head Island Management, Inc.; Mitchell Island Investments, Inc., a Foreign Corporation, as General Partner of Bald Head Island Limited; and, Douglas "Bud" Odell, Defendants.

Bald Head Island Limited, Defendant, Third-Party Plaintiffs, v. Timothy Matthews, Third-Party Defendant.

No. COA08-249.

Court of Appeals of North Carolina.

September 15, 2009.

Appeal by plaintiffs from orders entered 10 September 2007, 11 September 2007 and 17 September 2007 by Judge Ola M. Lewis in Brunswick County Superior Court. Heard in the Court of Appeals 24 September 2008.

Jones Martin Parris & Tessener Law Offices, P.L.L.C., by H. Forest Horne, Jr. and Kristen L. Beightol, Raleigh, for plaintiffs-appellants.

Patterson Dilthey, LLP, by Ronald C. Dilthey, Raleigh, for Bald Head Island Limited, defendants-appellees.

Crossley McIntosh Collier Hanley & Edes, P.L.L.C., by Biran E. Edes, Wilmington, Wilmington, for Village of Bald Head Island, defendants-appellees.

Brown, Crump, Vanore & Tierney, L.L.P., by Derek M. Crump, Raleigh, for Douglas "Bud" Odell, defendants-appellees.

JACKSON, Judge.

Howard Biggers, III ("Mr.Biggers") and Cindy Biggers ("Mrs.Biggers") (collectively, "plaintiffs") parents of Howard Biggers, IV ("Howard") and Garrett Biggers ("Garrett") appeal the trial court's orders granting summary judgment in favor of the Village of Bald Head Island ("the Village"), Bald Head Island Limited ("Limited"), and Douglas "Bud" Odell ("Odell") (collectively, "defendants"). For the reasons discussed herein, we affirm the trial court's orders.

Early in 2003, plaintiffs planned a family vacation to the Village for the upcoming summer. Plaintiffs previously had vacationed in the Village in 1997, 1999, 2000, 2001, and 2002. On 17 March 2003, plaintiffs entered into a Guest Rental Agreement with Limited to rent a cottage and electric vehicle¹ owned by Odell for their vacation.²

On 28 June 2003, plaintiffs traveled to the Village with their two children, Garrett, age four, and Howard, age six, for a week-long family vacation. On 30 June 2003, Mrs. Biggers left the cottage to pick up her sister and brother-in-law, Susan Matthews ("Mrs.Matthews") and Tim Matthews ("Mr.Matthews") (collectively, "the Matthewses") from the ferry landing. Mrs. Biggers drove the golf cart provided by Odell; Garrett and Howard rode in the front seat with her. After picking up the Matthewses, the family returned to the cottage where they picked up Mr. Biggers and prepared for a day at the beach. Mrs. Biggers drove along Keelson Row and through a "reverse `S'" turn both to and from the ferry landing.

Plaintiffs, Garrett, Howard, and the Matthewses packed the golf cart with chairs and towels, and they drove to the beach. The party again traveled along Keelson Row and through the reverse "S" turn. Shortly after arriving at the beach, Mrs. Matthews announced that Mr. Matthews's brother and sister-in-law also were coming to the Village that day. The Matthewses, along with Howard and Garrett, left the beach and drove Odell's golf cart to pick up the Matthewses' family members.

Mr. Matthews drove the golf cart; Garrett sat in the middle of the front seat; and Howard sat on the outside of the passenger-side of the front seat. Mrs. Matthews sat in the golf cart's right, rear seat. Mrs. Matthews and Howard sang children's songs as the party again approached the reverse "S" curve on Keelson Row. As they approached the curve, Mrs. Matthews extended her right arm in a protective manner. Howard turned in his seat so that his back was facing out of the cart with his right hip pointing toward the dashboard. Howard then fell out of the cart. Mrs. Matthews yelled for Mr. Matthews to stop the cart because he did not notice that Howard had fallen out of the cart.

The Matthewses took Howard back to the cottage. Howard complained that his head hurt. Mrs. Matthews stayed with Howard at the cottage while Mr. Matthews, his brother and sister-in-law, and Garrett returned to join plaintiffs at the beach. Mr. Matthews told plaintiffs that he believed Howard was all right.

Howard's condition worsened, and Emergency Medical Services were called approximately two hours after Howard's fall. Fourteen months later, on 14 August 2004, Howard died from complications resulting from a traumatic brain injury caused by his fall from the golf cart.

On 16 September 2005, plaintiffs brought this negligence action alleging that (1) the Village negligently failed to require seatbelts for electric vehicles operating within its jurisdiction; (2) Limited negligently failed to require seatbelts in the electric vehicles owned by the property owners; and (3) Odell negligently failed to install seatbelts in his golf cart. On 8 August 2007, Limited moved for summary judgment. On 15 August 2007, both the Village and Odell moved for summary judgment. Plaintiffs appeal from the trial court's orders granting summary judgment in defendants' favor.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2007). "An issue is `genuine' if it can be proven by substantial evidence[,] and a fact is `material' if it would constitute or irrevocably establish any material element of a claim or a defense." Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citing Bone Int'l, Inc. v. Brooks, 304 N.C. 371, 374-75, 283 S.E.2d 518, 520 (1981)).

In deciding a motion for summary judgment, a trial court must consider the evidence in the light most favorable to the non-moving party. See Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 471, 597 S.E.2d 674, 694 (2004). We review an order allowing summary judgment de novo. Summey, 357 N.C. at 496, 586 S.E.2d at 249.

The moving party bears the burden of showing that no triable issue of fact exists. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citing Texaco, Inc. v. Creel, 310 N.C. 695, 699, 314 S.E.2d 506, 508 (1984)). "Even though summary judgment is seldom appropriate in a negligence case, summary judgment may be granted in a negligence action where there are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence." Lavelle v. Schultz, 120 N.C.App. 857, 859, 463 S.E.2d 567, 569 (1995) (citing Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983)), disc. rev. denied, 342 N.C. 656, 467 S.E.2d 715 (1996). Furthermore,

[i]n order to survive a motion for summary judgment, plaintiff must establish a prima facie case of negligence by showing: (1) that defendant failed to exercise proper care in the performance of a duty owed plaintiff; (2) the negligent breach of that duty was a proximate cause of plaintiff's injury; and (3) a person of ordinary prudence should have foreseen that plaintiff's injury was probable under the circumstances.

Lavelle, 120 N.C.App. at 859-60, 463 S.E.2d at 569 (citing Talian v. City of Charlotte, 98 N.C.App. 281, 283, 390 S.E.2d 737, 739 (1990), aff'd, 327 N.C. 629, 398 S.E.2d 330 (1990) (per curiam)) (emphasis added).

In plaintiffs' first argument on appeal, plaintiffs contend that the trial court erred in granting summary judgment in favor of the Village because there is a genuine issue of material fact as to whether the Village waived its governmental immunity by purchasing liability insurance. However, plaintiffs' underlying argument is that the Village was negligent because it failed to enact an ordinance requiring the installation of seatbelts in golf carts traveling within its municipal boundaries. We disagree.

"The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other." N.C. Const. art. I, § 6. "A violation of the separation of powers doctrine occurs when one branch of state government exercises powers that are reserved for another branch of state government." County of Cabarrus v. Tolson, 169 N.C.App. 636, 639, 610 S.E.2d 443, 446 (2005) (citing Ivarsson v. Office of Indigent Def. Servs., 156 N.C.App. 628, 631, 577 S.E.2d 650, 652 (2003)). Thus, it long has been the rule that

when a general authority is given to a municipal corporation, to be exercised through its proper legislative officers, to make ordinances for the good government, health and safety of the inhabitants and their property, it is thereby left entirely to the discretion of those authorities to determine what ordinances are proper for those purposes.

Hill v. The Bd. of Aldermen of the City of Charlotte, 72 N.C. 55, 56 (1875) (per curiam) (holding that the plaintiff could not recover from the city for fire damage to his property caused by firecrackers because the decision of the municipal authorities to suspend temporarily an ordinance prohibiting firecrackers was within the authorities' discretion). Otherwise, a court "would arrogate to itself the legislative power of the city authorities, and it cannot be supposed possible that any court will be guilty of such an usurpation." Id. at 57. The Court explained that "the question, whether [the municipal authorities' decision is] wise or not, is not for a court to determine." Id. Therefore, "[a] municipal corporation is not liable to an action for damages either for the non-exercise of, or for the manner in which, in good faith, it exercises...