Kirkpatrick v. Town of Nags Head

• Decision Date: 05 July 2011
• Docket Number: No. COA10–309.,COA10–309.
• Citation: 713 S.E.2d 151
• Parties: Neil M. KIRKPATRICK and Cheryl B. Kirkpatrick, Plaintiffsv.TOWN OF NAGS HEAD, a North Carolina municipal corporation, Defendant.
• Court: North Carolina Court of Appeals

713 S.E.2d 151

Neil M. KIRKPATRICK and Cheryl B. Kirkpatrick, Plaintiffs

v.TOWN OF NAGS HEAD, a North Carolina municipal corporation, Defendant.

No. COA10–309.

Court of Appeals of North Carolina.

July 5, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from order entered 7 December 2009 by Judge Walter H. Godwin in Dare County Superior Court. Heard in the Court of Appeals 13 October 2010.

The Brough Law Firm, Chapel Hill, by T.C. Morphis, Jr., and Robert E. Hornik, Jr., for Plaintiff–Appellee.

Hornthal, Riley, Ellis & Maland, L.L.P., by John D. Leidy, Elizabeth City, and Benjamin M. Gallop, Nags Head, for Defendant–Appellant.

ERVIN, Judge.

Defendant Town of Nags Head appeals from an order denying its motion for summary judgment predicated on governmental immunity grounds. On appeal, Defendant contends that the trial court erred by failing to conclude that it was immune from liability based upon the claims asserted against it by Plaintiffs Neil M. Kirkpatrick and Cheryl B. Kirkpatrick on governmental immunity grounds and that it had not waived governmental immunity by purchasing insurance. After careful consideration of Defendant's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court erred by failing to enter summary judgment in favor of Defendant and that this case should be remanded to the Dare County Superior Court for the entry of judgment in favor of Defendant.

I. Factual Background

In 1983, Plaintiffs purchased a house and lot located at 9830 East Surfside Drive in Nags Head. At that time, Plaintiffs' property was located in the second row of houses and was separated from the Atlantic Ocean by a paved right-of-way known as Surfside Drive, a row of oceanfront homes, and a dune line. Over time, the dune line, the oceanfront homes, and the paved right-of-way were all washed away by the Atlantic Ocean.

In September 2003, Hurricane Isabel destroyed “[m]ost[,] if not all[,] of the paved surface of the Surfside Drive right-of-way in the vicinity of the Plaintiffs' property.” After Hurricane Isabel, Defendant made a number of improvements in the area, including the installation of a protective berm and the creation of a gravel roadbed along the route of Surfside Drive. Both the berm and the gravel roadbed were washed away by a nor'easter in 2004.

The relevant section of Surfside Drive has not had a paved surface since September 2003, and no gravel roadbed has existed on that site since 2004. After the 2004 nor'easter, Defendant made a conscious decision to refrain from making any additional effort to rebuild, repair, or restore Surf side Drive. Furthermore, Defendant erected “permanent barricades” to prevent vehicles from traveling upon the affected portion of Surf side Drive. In the years following the 2004 nor' easter, the portion of Surfside Drive relevant to this appeal continued to erode. Although the record reflects some disagreement between the parties about the exact date upon which Surfside Drive completely disappeared into the Atlantic, the right-of-way no longer existed as of 2010.

Plaintiffs utilized the residence situated on their lot as a summer rental property.¹ Prior to its disappearance, Plaintiffs' residence was accessed by way of Surfside Drive. According to Plaintiff Neil Kirkpatrick, “[a]fter the October 23, 2004 nor'easter, [Plaintiffs] were unable to access the House by vehicle because approximately the portion of Surf side Drive running in front of the Property had been washed away completely.” Plaintiff Neil Kirkpatrick further complained that Defendant “prohibited. driving over the open beach for nearly all of the time between the October 23, 2004 nor'easter and the present[,] ... [and,] [b]eginning on November 16, 2004, [Defendant] formally prohibited all vehicular access in or out of the washed out portion of Surfside Drive.” Even so, Plaintiffs were sometimes able to access their home by driving on the beach or by parking in a public right-of-way near the property and walking to the house and were always able to reach their residence on foot. On 24 January 2007, Defendant informed Plaintiffs that their residence had become unsuitable for occupancy and that they could not reoccupy it until vehicular access had been restored.

On 15 November 2007, Plaintiffs filed a complaint against Defendant Town of Nags Head alleging claims for inverse condemnation and negligence. In their complaint, Plaintiffs alleged that Defendant had an affirmative duty pursuant to N.C. Gen.Stat. § 160A–269(a) to keep public streets “in proper repair” and “free from unnecessary obstructions.” According to Plaintiffs, Defendant negligently failed to comply with this obligation by refraining from taking any action to maintain Surfside Drive after the 2004 nor'easter “washed out the improved road surface ... completely .” In Plaintiffs' view, Defendant's negligence caused Plaintiffs to sustain “substantial costs, damage and harm.” More specifically, Plaintiffs alleged that Defendant's conduct resulted in:

lost rental revenue in 2005, 2006 and 2007; ... caused [Plaintiffs] to make significant expenditures trying to establish alternate access to the Property; ... forced [Plaintiffs] to expend significant sums placing sandbags seaward of [their property] to protect it from erosion; and ... forced [Plaintiffs] to undertake other expensive repairs.

In response to an interrogatory asking Plaintiffs to “[i]dentify as an ‘Act’ each instance that [they] suffered damage due to any act or failure to act on the part of the Defendant,” Plaintiffs stated that:

... The Plaintiffs were unable to rent out the Kirkpatrick Property in 2005, 2006, 2007 and 2008 because of a lack of access to the structure. Also, the Plaintiffs continue to pay taxes on the property, but effectively receive no services because there is no vehicle access to the Kirkpatrick Property[.]

Moreover, Plaintiff Neil Kirkpatrick has spent thousands of dollars installing sandbags to protect the Kirkpatrick Property.... These bags are located just seaward of the house. Had the Town timely closed the Southern Portion of Surf side Drive, however, by State law the Plaintiffs would have taken title to part of the land underneath the right-of-way and could have placed the sandbags further from the house, thereby providing better protection to the house.

Also, the Plaintiffs have spent considerable sums repairing their house due [to] the effects of erosion and storms.... At this time, Plaintiffs have not determined specifically which repairs were necessitated or exacerbated by the inaction of the Town.

Finally, the Plaintiffs have expended numerous hours working with neighboring property owners to establish a private accessway for the Kirkpatrick Property. Had the Town closed the Southern Portion of Surf side Drive, however, the Town would have then been obligated to either purchase or condemn an alternate accessway for the Kirkpatrick Property.

After an initial period of discovery, Plaintiffs filed a motion for partial summary judgment and Defendant filed a motion for summary judgment. The parties' motions were heard on 6 April 2009 before Judge Jerry R. Tillet. On 20 May 2009, Judge Tillett entered an order denying Plaintiffs' motion in its entirety, granting summary judgment in favor of Defendant with respect to Plaintiffs' inverse condemnation claim, and denying the remainder of Defendant's motion, which related to Plaintiffs' negligence claim, without prejudice “until it may be determined if defendant has waived its immunity by the purchase of liability insurance actually providing coverage for such claim.”

After additional discovery, Defendant's renewed motion for summary judgment was heard before the trial court at the 16 November 2009 civil session of the Dare County Superior Court. On 7 December 2009, the trial court entered an order denying Defendant's motion, stating, in pertinent part, that:

.... Upon consideration of the arguments of counsel, written briefs, pleadings, and the discovery materials, affidavits and other materials submitted to the Court pursuant to N.C.R. Civ. Pro. 56, the Court finds that a genuine issue of material fact exists with regard to whether defendant has waived its immunity by the purchase of insurance providing liability coverage applicable to Plaintiffs' claim of negligence and that Defendant is not entitled to judgment as a matter of law on Plaintiffs' claim of negligence.

Defendant noted an appeal to this Court from the trial court's order.

II. Legal Analysis

A. Standard of Review

The entry of summary judgment is appropriate when “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); see also Johnson v. Beverly–Hanks & Assoc., 328 N.C. 202, 207, 400 S.E.2d 38, 41 (1991) (stating that “[i]t is well settled that a party moving for summary judgment is entitled to such judgment if the party can show, through pleadings, depositions, and affidavits, that there is no genuine issue of material fact requiring a trial and that the party is entitled to judgment as a matter of law”) (citations omitted). “The party who moves for summary judgment has the initial burden to prove that there are no disputed factual issues[;]” however, “[o]nce the moving party has met this initial burden, the nonmoving party must produce a forecast of evidence demonstrating that he or she will be able to make out a prima facie case at trial.” Johnson, 328 N.C. at 207, 400 S.E.2d at 41 (citations omitted).

We review a trial court order granting or denying a summary judgment motion on a de novo basis, with our examination of the trial court's order focused on “determin[ing] whether there is a ‘genuine issue of material fact’ and whether either party is ‘entitled to judgment as a...