Milner Hotels, Inc. v. City of Raleigh, 529
| Decision Date | 24 July 1967 |
| Docket Number | No. 529,529 |
| Citation | 271 N.C. 224,155 S.E.2d 543 |
| Court | North Carolina Supreme Court |
| Parties | MILNER HOTELS, INCORPORATED v. CITY OF RALEIGH, Gateway Plaza, Incorporated, Seby Jones and Robert D. Gorham. |
Paul F. Smith and Donald L. Smith, Raleigh, for the City of Raleigh.
Young, Moore, Henderson & Adams, by J. Allen Adams, Raleigh, for plaintiff.
The City demurred for that the complaint fails to state a cause of action against the City of Raleigh in that there are not sufficient allegations in the complaint to show that the City of Raleigh had any legal duty to perform any of the acts which the complaint alleges that the City failed to perform.
Munro v. Carolina Rubber Company, 198 N.C. 808, 153 S.E. 412.
Miller v. First Nat. Bank, 234 N.C. 309, 321, 67 S.E.2d 362, 371.
The complaint alleges that the City had utilized and adopted Pigeon House Branch as a part of its storm drainage system and sewer and that, having done so, it was Negligent: in permitting obstructions and debris to accumulate in the stream which blocked it and impeded its natural flow; that it took no action to keep the culvert free and clean of obstructions and failed to maintain the channel; failed to take action to correct the dangerous condition, after numerous requests; caused large boulders to be placed in the stream, thus narrowing it and impeding its natural flow and allowed them to remain therein which caused the stream to overflow and damage plaintiff's property. It thus alleges the negligence of the City in Omitting to fulfill its duties and also positive and affirmative acts of negligence.
The City relies upon the case of Taylor v. Town of Hertford, 253 N.C. 541, 117 S.E.2d 469, as authority for its lack of responsibility to the plaintiff and suggests that the Court overlooked the holdings of that case in the opinion. In that case, plaintiff's intestate was killed while driving his bread truck on Edenton Road Street in the Town of Hertford when an elm tree fell on the cab of the truck. In affirming the action of the lower Court in nonsuiting the plaintiff's case, the opinion stated: 'In sustaining the motion to nonsuit, the court apparently relied on G.S. §§ 136--41.1, (G.S.) 136--93 and (G.S.) 160--54. * * * defendant contends, and we hold rightly so, that these statutes clearly demonstrate that the authority and control over the tree referred to in this action was that of the State Highway Commission. * * * the Court holds, applying the statutes, that plaintiff fails to make out a case.' However, that case...
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Matternes v. City of Winston-Salem
...268 N.C. 535, 151 S.E.2d 35, differs from the present case in that there, as appears more clearly in the opinion upon rehearing, 271 N.C. 224, 155 S.E.2d 543, the complaint alleged the city had adopted the stream which overflowed as a part of its strom sewer drainage system and also alleged......
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Asheville Sports Prop. v. City of Asheville
...715, 157 S.E.2d 577 (1967); Milner Hotels, Inc. v. City of Raleigh, 268 N.C. 535, 151 S.E.2d 35 (1966), modified on reh'g, 271 N.C. 224, 155 S.E.2d 543 (1967); Howell v. City of Lumberton, 144 N.C.App. 695, 548 S.E.2d 835 (2001); and Hooper v. City of Wilmington, 42 N.C.App. 548, 257 S.E.2d......
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FIRST GASTON BANK v. City of Hickory
...Hotels duty." In Milner Hotels, Inc. v. City of Raleigh, 268 N.C. 535, 537, 151 S.E.2d 35, 37-38 (1966), modified on reh'g, 271 N.C. 224, 155 S.E.2d 543 (1967), the Supreme Court held that the City could be held liable when a stream used by the City of Raleigh to drain storm water backed up......
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Jennings v. City of Fayetteville
...in storm drain maintenance. Milner Hotels, Inc. v. Raleigh, 268 N.C. 535, 537, 151 S.E.2d 35, 37 (1966), modified on reh'g, 271 N.C. 224, 155 S.E.2d 543 (1967) ("The duty of maintaining sewers and drains in good repair includes the obligation to keep them free of obstruction, and a municipa......