Ladd v. Funderburk

• Decision Date: 18 October 2022
• Docket Number: COA22-109
• Citation: 879 S.E.2d 731
• Parties: The ESTATE OF Paul G. LADD, Jr., BY Its Administrator Dianne LADD, and Dianne Ladd, Plaintiffs, v. Thomas FUNDERBURK, Mary Funderburk, the Thomas Funderburk Revocable Living Trust, and the Mary Funderburk Revocable Living Trust, Defendants / Third-Party Plaintiffs-Appellees, v. Town of Matthews, North Carolina, Third-Party Defendant-Appellant.
• Court: North Carolina Court of Appeals

879 S.E.2d 731

The ESTATE OF Paul G. LADD, Jr., BY Its Administrator Dianne LADD, and Dianne Ladd, Plaintiffs,

v.Thomas FUNDERBURK, Mary Funderburk, the Thomas Funderburk Revocable Living Trust, and the Mary Funderburk Revocable Living Trust, Defendants / Third-Party Plaintiffs-Appellees,

v.Town of Matthews, North Carolina, Third-Party Defendant-Appellant.

No. COA22-109

Court of Appeals of North Carolina.

Filed October 18, 2022

Cranfill Sumner LLP, by Steven A. Bader, Raleigh, and Patrick H. Flanagan, Charlotte, for Third-Party Defendant-Appellant.

Hedrick Gardner Kincheloe & Garofalo LLP, Charlotte, by M. Duane Jones, Allen C. Smith and C. Andrew Dandison, for Third-Party Plaintiffs-Appellees.

WOOD, Judge.

¶ 1 In this case we must determine if a town is immune from suit when a tree on private property falls upon a vehicle traveling on a public street.

I. Facts

¶ 2 The Town of Matthews is like many suburbs in our growing State. Though new businesses and homes have appeared in recent years, the natural charm of the Town is preserved in its several parks and the canopy of trees arching its streets. East John Street is one such street where towering oaks bow to the procession of traffic below. A winter storm in late 2018, however, disrupted the tranquility.

¶ 3 Paul and Dianne Ladd drove through this storm and down East John Street when a tree fell atop them—killing Mr. Ladd and injuring Mrs. Ladd. The tree originally stood in the front yard of property owned by Thomas and Mary Funderburk near the intersection of East John Street and Charles Buckley Way. It leaned more toward East John Street before eventually toppling at its roots.

¶ 4 Dianne Ladd and the estate of her deceased husband sued the Funderburks for wrongful death, negligence, and negligent infliction of emotional distress on July 18, 2019.

Later, the Funderburks cross-sued the Town of Matthews for contribution under the Uniform Contribution Among Tortfeasors Act. The Town responded with a motion for summary judgment claiming that it was entitled to governmental immunity. Supporting its motion, the Town additionally argued that the State, and not the Town, maintained East John Street, and the Town, therefore, did not owe any affirmative duty to travelers on this street. The Funderburks countered that the tree could have fallen upon the nearby street, Charles Buckley Way, that was maintained by the Town and, therefore, the Town's alleged duty stemmed from its duties to travelers on that nearby street. The trial court denied the Town's motion for summary judgment. The Town now appeals to this Court.

II. Jurisdiction

¶ 5 "Usually, the denial of a motion for summary judgment is not immediately appealable, as it is interlocutory. However, denial of a motion for summary judgment ‘on the grounds of sovereign and qualified immunity is immediately appealable.’ " Epps v. Duke Univ. , 122 N.C. App. 198, 201, 468 S.E.2d 846, 849 (1996) (citation omitted).

III. Standard of Review

¶ 6 "We review a trial court's order for summary judgment de novo to determine whether there is a ‘genuine issue of material fact’ and whether either party is ‘entitled to judgment as a matter of law.’ " Robins v. Town of Hillsborough , 361 N.C. 193, 196, 639 S.E.2d 421, 423 (2007) (quoting Summey v. Barker , 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) ). "In reviewing a summary judgment order, we consider the evidence in the light most favorable to the nonmoving party." Stone v. State , 191 N.C. App. 402, 407, 664 S.E.2d 32, 36 (2008) (citing Bruce-Terminix Co. v. Zurich Ins. Co. , 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998) ).

IV. Governmental Immunity

¶ 7 Municipal corporations, when acting as an "agen[t] of the sovereign," may take advantage of the same common-law doctrine of governmental immunity that the State enjoys. Britt v. City of Wilmington , 236 N.C. 446, 450, 73 S.E.2d 289, 293 (1952). This doctrine offers a municipality immunity "from suit for the negligence of its employees in the exercise of governmental functions." Estate of Williams v. Pasquotank Cnty. Parks & Recreation Dep't , 366 N.C. 195, 198, 732 S.E.2d 137, 140 (2012) (quoting Evans ex. rel. Horton v. Hous. Auth. , 359 N.C. 50, 53, 602 S.E.2d 668, 670 (2004) ). "In determining whether an entity is entitled to governmental immunity," we consider "whether the alleged tortious conduct of the county or municipality arose from an activity that was governmental or proprietary in nature." Id. at 199, 732 S.E.2d at 141.

[A] "governmental" function is an activity that is "discretionary, political, legislative, or public in nature and performed for the public good in [sic] behalf of the State rather than for itself." A "proprietary" function, on the other hand, is one that is "commercial or chiefly for the private advantage of the compact community."

Id. (quoting Britt , 236 N.C. at 450, 73 S.E.2d at 293 ). "[T]he analysis should center upon the governmental act or service that was allegedly done in a negligent manner ... rather than the nature of the plaintiff's involvement." Bynum v. Wilson Cnty. , 367 N.C. 355, 359, 758 S.E.2d 643, 646 (2014). If the act or service is "governmental," immunity generally exists; if it is "proprietary" in nature, the municipality is not immune. Id. at 358, 758 S.E.2d at 646. In determining the difference, we utilize the "three-step inquiry" established in Estate of Williams v. Pasquotank County Parks & Recreation Department . Id.

¶ 8 First, we "consider whether our legislature has designated the particular function at issue as governmental or proprietary." Estate of Williams , 366 N.C. at 200, 732 S.E.2d at 141. The Funderburks contend that the Town's alleged failure to prevent the tree from falling violates one of the affirmative duties enumerated in N.C. Gen. Stat. § 160A-296(a). The statute reads in part, "A city shall have ... [t]he duty to keep the public streets ... open for travel and free from unnecessary obstructions."¹

N.C. Gen. Stat. § 160A-296(a)(2) (2021). The Legislature has considered this duty to be one of proprietary rather than governmental function. Cooper v. S. Pines , 58 N.C. App. 170, 173, 293 S.E.2d 235, 236 (1982). However, we are not persuaded that the Town's actions or inactions fall within this statutory scheme.

¶ 9 A plain reading of Section 160A would not reveal that a municipality's duty to keep roadways clear would extend to obstructions on private property. Even so, we held in Beckles-Palomares v. Logan that vegetation and parked cars near an intersection could have created an "obstruction" under Section 160A. 202 N.C. App. 235, 244, 688 S.E.2d 758, 764 (2010). Conversely, in Bowman v. Town of Granite Falls , we held that a potentially dangerous tree on private property and near a street did not create an affirmative duty under Section 160A before the tree fell onto a car. 21 N.C. App. 333, 334, 204 S.E.2d 239, 240 (1974). The present case aligns more with Bowman . The Section 160A affirmative duty does not require preventative measures for trees on private property which are not already an obstruction. We therefore hold the statute does not apply to the Town's inaction here.

¶ 10 Next, we consider whether the "activity is necessarily governmental in nature when it can only be provided by a governmental agency or instrumentality." Estate of Williams , 366 N.C. at 202, 732 S.E.2d at 142. The Funderburks allege the Town failed to utilize its tree ordinance in order to protect the public traveling on its streets. The tree ordinance states that the Town "may order the removal of any tree declared to be a public nuisance" or, "[i]n situations involving an imminent threat to the public health, safety or welfare, the Town shall make reasonable attempts to contact the property owner but may proceed expeditiously without prior notice" to eliminate the threat. Only the Town could utilize the authority of the tree ordinance. A private party could not have, under color of the ordinance, walked onto the Funderburks’ property and unilaterally cut down the tree. This was an activity preserved solely for the Town.

¶ 11 To the extent any affirmative duty resides in the Town's tree ordinance, we reaffirm the holding made in Cooper v. South Pines . "The fact that a [town] has the authority to make certain decisions ... does not mean that the [town] is under an obligation to do so. The words ‘authority’ and ‘power’ are not synonymous with the word ‘duty.’ " Cooper , 58 N.C. App. at 173, 293 S.E.2d at 236. The tree ordinance authorizes the Town to enter private property and cut down trees in specific circumstances. Having empowered itself to do a thing does not mean, as in this case, that it must have done that thing. This is true even if the tree was within the Town's zone of control by virtue of its...