Matternes v. City of Winston-Salem

• Decision Date: 26 November 1974
• Docket Number: No. 74,WINSTON-SALEM,74
• Parties: James Russell MATTERNES, Executor of the Estate of Gwendolyn Porter Matternes, Deceased, et al. v. CITY OF
• Court: North Carolina Supreme Court

Page 481

209 S.E.2d 481

286 N.C. 1

James Russell MATTERNES, Executor of the Estate of Gwendolyn

Porter Matternes, Deceased, et al. v. CITY OF WINSTON-SALEM.

No. 74.

Supreme Court of North Carolina.

Nov. 26, 1974.

William G. Pfefferkorn, Charles O. Peed, and M. Beirne Minor, Winston-Salem, for plaintiffs.

Womble, Carlyle, Sandridge & Rice by W. F. Womble, Allan R. Gitter, and Roddey M. Ligon, Jr., Winston-Salem, for defendant.

LAKE, Justice.

Upon this appeal, we do not reach the question of whether the city was negligent or otherwise broke its contract with the Board of Transportation, formerly called the State Highway Commission. The trial court granted summary judgment for the city on the ground that if the city, having so contracted with the Board of Transportation, failed in all of the respects alleged in the complaints, the plaintiffs have no cause of action against the city for the death, personal injuries and damages resulting from any or all of such failures.

The liability of a city or town for damages for injuries sustained by a user of its streets, due to the defective condition of the street, nothing else appearing, was thus stated by Justice Parker, later Chief Justice, speaking for this Court in Smith v. Hickory, 252 N.C. 316, 113 S.E.2d 557:

'The governing authorities of a town or city have the duty imposed upon them by law of exercising ordinary care to maintain its streets and sidewalks in a condition reasonably safe for those who use them in a proper manner. Liability arises only for a negligent breach of duty, and for this reason it is necessary for a complaining party to show more than the existence of a defect in the street or sidewalk and the injury * * *.'

To the same effect, see: Waters v. Roanoke Rapids, 270 N.C. 43, 153 S.E.2d 783; Mosseller v. Asheville, 267 N.C. 104, 147 S.E.2d 558; Faw v. North Wilkesboro, 253 N.C. 406, 117 S.E.2d 14; Gettys v. Marion, 218 N.C. 266, 10 S.E.2d 799; Bailey v. Winston, 157 N.C. 252, 72 S.E. 966; Fitzgerald v. Concord, 140 N.C. 110, 52 S.E. 309; Bunch v. Edenton, 90 N.C. 431.

By virtue of applicable statutes, a different rule applies, nothing else appearing, when the street on which the injury occurred is a part of the State highway system. G.S. § 160A--297(a) provides:

'Streets under authority of Board of Transportation.--(a) A city shall not be responsible for maintaining streets or bridges under the authority and control of the Board of Transportation, And shall not be liable for injuries to persons or property resulting from any failure to do so.' (Emphasis added.)

G.S. § 136--45 provides:

'General purpose of law: control, repair and maintenance of highways.--The general purpose of the laws creating the Board of Transportation is that said Board of Transportation shall take over, establish, construct, and maintain a statewide system of hard-surfaced and other dependable highways * * * and for the further purpose of permitting the State to assume control of the State highways, repair, construct, and reconstruct and maintain said highways at the expense of the entire State, and to relieve the counties and cities and towns of the State of this burden.'

G.S. § 136--47 provides:

'Routes and maps; objections; changes.--The designation of all roads comprising the State highway system as proposed by the Board of Transportation shall be mapped, and * * * the * * * street-governing body of each city or town in the State shall be notified of the routes that are to be selected and made a part of the State system of highways; and if no objection or protest is made by the * * * street-governing body of any city or town in the State within 60 days after the notification before mentioned, then and in that case the said roads or streets, to which no objections are made, shall be and constitute links or parts of the State highway system * * *.'

G.S. § 136--66.1 provides:

'Responsibility for streets inside municipalities.--Responsibility for streets and highways inside the corporate limits of municipalities is hereby defined as follows:

(1) The State Highway System.--The State highway system inside the corporate limits of municipalities shall consist of a system of major streets and highways necessary to move volumes of traffic efficiently and effectively from points beyond the corporate limits of the municipalities through the municipalities and to major business, industrial, governmental and institutional destinations located inside the municipalities. The Board of Transportation shall be responsible for the maintenance, repair, improvement, widening, construction and reconstruction of this system. * * *

(2) The Municipal Street System.--In each municipality the municipal street system shall consist of those streets and highways accepted by the municipality which are not a part of the State highway system. The municipality shall be responsible for the maintenance, construction, reconstruction, and right-of-way acquisition for this system.

(3) Maintenance of State Highway System by Municipalities.--Any city or town, by written contract with the Board of Transportation, may undertake to maintain, repair, improve, construct, reconstruct or widen those streets within municipal limits which form a part of the State highway system. * * * All work to be performed by the city or town under such contract or contracts shall be in accordance with Board of Transportation standards, and the consideration to be paid by the Board of Transportation to the city or town for such work, whether in money or in services, shall be adequate to reimburse the city or town for all costs and expenses, direct or indirect, incurred by it in the performance of such work * * *.'

G.S. § 136--41.3 provides:

'Use of funds; records and annual statement; excess accumulation of funds; contracts for maintenance, etc., of streets.--* * * The Board of Transportation within its discretion is hereby authorized to enter into contracts with municipalities for the purpose of maintenance, repair, construction, reconstruction, widening or improving streets of municipalities. And the Board of Transportation in its discretion may contract with any city or town which it deems qualified and equipped so to do that the city or town shall do the work of maintaining, repairing, improving, constructing, reconstructing, or widening such of its streets as form a part of the State highway system * * *.'

Interstate Highway No. 40, including the Hawthorne Bridge, is part of the State highway system over which the Board of Transportation had and has authority. It is clear that, under the foregoing statutes, apart from its contract with the Board of Transportation, the city has no responsibility for the maintenance or the condition of the Hawthorne Bridge and no liability to any person injured by reason of any defect in its condition, not due to an act of the city, or by reason of any failure to remove snow and ice therefrom. In our opinion, it is equally clear that the above quoted provisions of G.S. § 160A--297(a) are intended to apply where there is no such contract and do not, per se, absolve a city from liability for injury, if any, imposed upon it by such contract. Consequently, the matters alleged in the complaints, assuming the allegations to be true, do not give to the plaintiffs a right of action against the city for the death of Mrs. Matternes, the injuries sustained by her daughter or the damage to the automobile and the medical expenses incurred by the father of the child, unless liability for these arises out of the contract between the city and the Board of Transportation.

The material portions of the contract are quoted above. It does not contain any specific provision as to the liability of either party thereto for injury or damage to users of the highway caused by defects therein or the accumulation of snow, ice or other substance thereon. It provides for the performance by the municipality of work, which, apart from the contract, the Board of Transportation would be under a duty to perform, and for the compensation to be paid to the city for such work. It provides that the work is to be performed by the city in accordance with the requirements of the Board of Transportation and under the general administrative control of its engineer. Such contract does not change the status of the street from one which is a part of the State highway system to one which is part of the city system, and so bring it within the general rule, above quoted, concerning a city's duty to travelers upon its streets. See, Taylor v. Hertford, 253 N.C. 541, 117 S.E.2d 469. The status of the city under this contract is that of an employee of, or independent contractor with, the Board of Transportation.

It is to be observed that the plaintiffs do not complain of any act of the city which created, or increased the hazard of, any condition upon the Hawthorne Bridge or upon the highway of which it is a part. The question of a city's liability for so doing, with or without a contract with the Board of Transportation, is not before us. The complaint is that the city did nothing; that is, that the city broke its contract with the Board of Transportation by failing to correct or to remove a dangerous condition not the result of any act of the city. The liability of the city to the Board of Transportation for such breach of the contract is not before us.

The question upon this appeal is, Can an individual user of a street, which is part of the State highway system, who sustains personal injuries or property damage as the result of a dangerous condition of such street, maintain an action for damages against a city which contracted with the Board of Transportation to repair or remove such condition and then did nothing whatsoever about it? The answer is, No.

The general rule is that one who is not a party to a contract may not maintain an action for its breach. The plaintiffs contend that they fall within the well...