Estate of Williams ex rel. Overton v. Pasquotank Cnty. Parks & Recreation Dep't

• Decision Date: 24 August 2012
• Docket Number: No. 231PA11.,231PA11.
• Citation: 732 S.E.2d 137
• Court: North Carolina Supreme Court
• Parties: ESTATE OF Erik Dominic WILLIAMS, by and through Easter Williams OVERTON, Personal Representative v. PASQUOTANK COUNTY PARKS & RECREATION DEPARTMENT and Pasquotank County.

732 S.E.2d 137

ESTATE OF Erik Dominic WILLIAMS, by and through Easter Williams OVERTON, Personal Representative

v.PASQUOTANK COUNTY PARKS & RECREATION DEPARTMENT and Pasquotank County.

No. 231PA11.

Supreme Court of North Carolina.

Aug. 24, 2012.

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous decision of the Court of Appeals, ––– N.C.App. ––––, 711 S.E.2d 450 (2011), affirming an order denying defendants' limited motion for summary judgment entered on 4 November 2009 by Judge Alma L. Hinton in Superior Court, Pasquotank County. Heard in the Supreme Court on 12 March 2012.

Dixon & Thompson Law PLLC, by Sanford W. Thompson, IV and Samuel B. Dixon; Edenton, and Law Offices of Janice McKenzie Cole PLLC, Raleigh, by Janice M. Cole, for plaintiff-appellee.

Womble Carlyle Sandridge & Rice, LLP, Raleigh, by Burley B. Mitchell, Jr. and Robert T. Numbers, II, for defendant-appellants.

Wanda M. Copley, County Attorney, and Sharon J. Huffman, Assistant County Attorney, for New Hanover County; and Nelson Mullins Riley & Scarborough, LLP, Raleigh, by Leon Killian, III, for Haywood County, amici curiae.

Sharon G. Scudder, General Counsel, for North Carolina Association of County Commissioners, amicus curiae.

Walker, Allen, Grice, Ammons & Foy, L.L.P., Goldsboro, by Jerry A. Allen, Jr., for North Carolina Association of EMS Administrators, amicus curiae.

Kimberly S. Hibbard, General Counsel, and Gregory F. Schwitzgebel, III, Senior Assistant General Counsel, for North Carolina League of Municipalities, amicus curiae.

Barbara B. Weyher, Raleigh, and Andrew C. Buckner, Sylva, for North Carolina School Boards Association, amicus curiae.

Edmond W. Caldwell, Jr., General Counsel, for North Carolina Sheriffs' Association, amicus curiae.

Roger A. Askew, Deputy County Attorney, and Scott W. Warren, County Attorney, for Wake County; and Michael Frue, County Attorney, for Buncombe County, amici curiae.

TIMMONS–GOODSON, Justice.

In this case we consider whether the trial court erred in denying a motion for summary judgment based upon governmental immunity. We take this opportunity to restate our jurisprudence of governmental immunity and, in light of our restatement, we vacate and remand the decision of the Court of Appeals for further remand to the trial court for proceedings not inconsistent with this opinion. In reaching our conclusion, we express no opinion whether defendants in this case, Pasquotank County and the Pasquotank County Parks & Recreation Department, are entitled to governmental immunity.

I. Background

Erik Dominic Williams drowned at a public park on 10 June 2007. The park, Fun Junktion, was owned by defendant Pasquotank County and maintained and operated by defendant Pasquotank County Parks & Recreation Department. Williams's estate filed a claim against defendants alleging that, as a result of defendants' negligence, Williams drowned in the “Swimming Hole,” an area rented out to private parties at Fun Junktion. On 9 December 2008, defendants answered plaintiff's complaint denying any negligence and alleging the affirmative defenses of governmental immunity, sovereign immunity, and contributory negligence. On 4 September 2009, defendants made a limited motion for summary judgment, contending that Williams's allegations were barred by the doctrines of governmental and sovereign immunity. The trial court denied defendants' limited motion for summary judgment, concluding that they were not entitled to governmental immunity because “defendants charged and collected a fee” “for the use of the Fun Junktion park, and defendants were providing the same type of facilities and services that private individuals or corporations could provide.”

A unanimous panel of the Court of Appeals affirmed. The panel reasoned that governmental immunity applies to counties and municipalities acting in the performance of governmental, rather than proprietary, functions. See Estate of Williams v. Pasquotank Cnty. Parks & Rec. Dep't, ––– N.C.App. ––––, ––––, 711 S.E.2d 450, 452 (2011). To determine whether a function is governmental or proprietary, the Court of Appeals articulated a four-factor test considering: (1) whether an undertaking is one traditionally provided by local governments; (2) if the undertaking is one in which only a governmental agency could engage, or if any corporation, individual, or group of individualscould do the same thing; (3) whether the governmental unit charged a substantial fee; and (4) if a fee was charged, whether a profit was made. Id. at ––––, 711 S.E.2d at 453 (citations and internal quotation marks omitted). The Court of Appeals described the second factor—whether nongovernmental actors could perform the same function provided by the county or municipality—as the “most important.” Id. at ––––, 711 S.E.2d at 453.

The Court of Appeals then applied these four factors, concluding that: (1) public parks have traditionally been provided by local government; (2) public parks could be provided by private, as well as public, entities; (3) defendants charged a fee ($75.00) for the use of Fun Junktion, though (4) defendants did not make a profit as a result of charging this or other rental fees for Fun Junktion. Id. at ––––, 711 S.E.2d at 453–54. The Court of Appeals again opined that “the second factor is the most important” and concluded that “defendant was involved in a proprietary function in the operation of the party facilities at Fun Junktion.” Id. at ––––, 711 S.E.2d at 454. Accordingly, the Court of Appeals affirmed the trial court's denial of defendants' motion for summary judgment. Id. at ––––, 711 S.E.2d at 454.

II. Analysis

In this case we review the trial court's denial of a motion for summary judgment. A motion for summary judgment “shall be” granted “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. R. Civ. P. 56(c). We review the grant or denial of a motion for summary judgment de novo. E.g.; Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, ––– N.C. ––––, ––––, 723 S.E.2d 744, 747 (2012); Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004).

Our jurisprudence has recognized the rule of governmental immunity for over a century. See Moffitt v. City of Asheville, 103 N.C. 191, 203–04, 103 N.C. 237, 254–55, 9 S.E. 695, 697 (1889) (adopting the doctrine of governmental immunity); see also Koontz v. City of Winston–Salem, 280 N.C. 513, 519, 186 S.E.2d 897, 902 (1972) (emphasizing that “[t]his Court has not departed from the rule of governmental immunity adopted in the year 1889 in the case of Moffitt v. Asheville ”). Under the doctrine of governmental immunity, a county or municipal corporation “is immune from suit for the negligence of its employees in the exercise of governmental functions absent waiver of immunity.” ' Evans ex rel. Horton v. Hous. Auth., 359 N.C. 50, 53, 602 S.E.2d 668, 670 (2004) (quoting Meyer v. Walls, 347 N.C. 97, 104, 489 S.E.2d 880, 884 (1997)); Moffitt, 103 N.C. at 203, 103 N.C. at 254–55, 9 S.E. at 697 (stating a city or town “incurs no liability for the negligence of its officers” acting under authority conferred by its charter or for the sole benefit of the public).

This principle is derived from English law and is based on the premise that, as the creator of the law, “the king could do no wrong.” Steelman v. City of New Bern, 279 N.C. 589, 592, 184 S.E.2d 239, 241 (1971). While we have acknowledged that this rationale is not as persuasive as it once was, this Court has declined to abrogate the common law doctrine of governmental immunity. Instead, we have reasoned that any change in our common law is more properly a task for the legislature.

More specifically, this Court has expressed the following:

We suggested in Steelman v. City of New Bern, “It may well be that the logic of the doctrine of sovereign immunity is unsound and that the reasons which led to its adoption are not as forceful today as they were when it was adopted.” 279 N.C. at 595, 184 S.E.2d at 243. However, we declined to abrogate a municipality's governmental immunity from tort liability for the negligence of its agents acting in the scope of their authority. The rationale was that, albeit the doctrine was “judge-made,” the General Assembly had recognized it as the public policy of the State by enacting legislation which permitted municipalities and other governmental bodies to purchase liability insurance and thereby waive their immunity to the extent of the amount of insurance so obtained. Id. at 594–96, 184 S.E.2d at 242–43.

Smith v. State, 289 N.C. 303, 312, 222 S.E.2d 412, 418–19 (1976).

Nevertheless, governmental immunity is not without limit. “[G]overnmental immunity covers only the acts of a municipality or a municipal corporation committed pursuant to its governmental functions.” Evans, 359 N.C. at 53, 602 S.E.2d at 670 (emphasis added) (citations omitted). Governmental immunity does not, however, apply when the municipality engages in a proprietary function. Town of Grimesland v. City of Washington, 234 N.C. 117, 123, 66 S.E.2d 794, 798 (1951) (“[W]hen a municipal corporation undertakes functions beyond its governmental and police powers and engages in business in order to render a public service for the benefit of the community for a profit, it becomes subject to liability for contract and in tort as in case of private corporations.”) (citing, inter alia, Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42 (1942)). In determining whether an entity is entitled to governmental immunity, the result therefore turns on whether the alleged tortious conduct of the county or municipality arose from an activity that was governmental or proprietary in nature.

We have long held that a “governmental” function is an activity that is ...