Schmidt v. Breeden

• Decision Date: 20 July 1999
• Docket Number: No. COA98-422.,COA98-422.
• Citation: 517 S.E.2d 171,134 NC App. 248
• Parties: Joy E. SCHMIDT, Individually and as Guardian Ad Litem for Michael Anthony Schmidt, Plaintiff, v. Laurie BREEDEN, Jennifer Owens and the Charlotte-Mecklenburg Board of Education, Defendants.
• Court: North Carolina Court of Appeals

517 S.E.2d 171

134 NC App. 248

Joy E. SCHMIDT, Individually and as Guardian Ad Litem for Michael Anthony Schmidt, Plaintiff, v. Laurie BREEDEN, Jennifer Owens and the Charlotte-Mecklenburg Board of Education, Defendants.

No. COA98-422.

Court of Appeals of North Carolina.

July 20, 1999.

Justice & Eve, P.A., by David L. Edwards, Charlotte, for plaintiff-appellee.

Charles G. Monnett III, Charlotte, for plaintiff-appellee.

Smith Helms Mulliss & Moore, L.L.P., by James G. Middlebrooks and Elizabeth Baker Scanlan, Charlotte, for defendants-appellants.

JOHN, Judge.

Defendants appeal the trial court's denial of their motion for partial summary judgment predicated upon governmental immunity. We affirm in part and reverse in part.

Pertinent facts and procedural history include the following: On 15 January 1992, Michael Anthony Schmidt (Michael) was a six year old student enrolled in a voluntary after-school enrichment program operated and controlled by defendant Charlotte-Mecklenburg Board of Education (the Board) at the Idlewild Elementary School (hereinafter the Program). The Program was not included within the regular school curriculum, but rather was conducted between 2:00 and 6:00 P.M. each weekday afternoon. It provided:

recreation for ... children, a nutritious snack, homework time, ... tutoring in areas that they may [have] need[ed] help..., hands-on type[s] of learning, science activities and music activities, language arts ... [and] all kinds of different activities by way of play.

Michael's mother, plaintiff Joy E. Schmidt, was charged a thirty-five dollar ($35.00) per week enrollment fee for her son's participation in the Program.

According to plaintiff's complaint, Michael suffered a head injury 15 January 1992 while participating in the Program and in the care of Program staff members defendants Laurel Jeanne Breeden (Breeden) and her assistant Jennifer Owens (Owens). At home, Michael subsequently developed a headache, became nauseated and began to vomit. According to plaintiff, she did not realize the medical significance of these symptoms because no one from the Program had disclosed Michael's injury. As a consequence, appropriate medical treatment was delayed, exacerbating Michael's condition which ultimately included permanent brain and vision impairment.

On 8 October 1996, plaintiff filed the instant suit claiming Michael's injuries were caused by the negligence of defendants. The latter answered, generally denying plaintiff's allegations, and moved for partial summary judgment (defendants' motion) upon grounds that

the Board of Education ha[d] not purchased a contract of insurance for the first $1,000,000 of exposure and thus ha[d] not waived its governmental immunity for any claim ... below that threshold.

In opposing defendants' motion, plaintiff did not contest the absence of liability insurance covering claims up to $1,000,000.00. Rather, plaintiff asserted

[t]he After-School Enrichment Program was, in effect, a private day care facility which operated and was located within a building ow[n]ed by the [d]efendant School Board.

Therefore, plaintiff concluded, the Board was not entitled to governmental immunity because operation of the Program constituted a proprietary function. The trial court denied defendants' motion 4 February 1998 and the latter timely appealed.

Preliminarily, we note that orders denying motions for summary judgment are interlocutory and generally not immediately appealable. See Hill v. Smith, 38 N.C.App. 625, 626, 248 S.E.2d 455, 456 (1978). Notwithstanding, our courts have established that denial of a summary judgment motion grounded upon governmental immunity affects a substantial right and is thereby immediately appealable pursuant to N.C.G.S. § 1-277(a) (1996) and N.C.G.S. § 7A-27(d) (1995). See Hallman v. Charlotte-Mecklenburg Bd. of Educ., 124 N.C.App. 435, 437, 477 S.E.2d 179, 180 (1996); see also Moore v. Evans, 124 N.C.App. 35, 39, 476 S.E.2d 415, 420 (1996) (defendants' appeal proper where trial court denied defendants' partial summary judgment motion predicated upon governmental immunity). As defendants' motion relied upon the defense of governmental immunity, we address the merits of their appeal.

Summary judgment is appropriately 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.G.S. § 1A-1, Rule 56(c) (1990). A summary judgment movant bears the burden of establishing the lack of any triable issue, and may do so by showing

that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot ... surmount an affirmative defense which would bar the claim.... All inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion.

Boudreau v. Baughman, 322 N.C. 331, 342-43, 368 S.E.2d 849, 858 (1988) (citations omitted).

Defendants assert the trial court erred in that

operation and control of the [Program] by the Board is a governmental function ... and therefore, the Board is entitled to partial summary judgment on the ground of governmental immunity.

We conclude defendants' argument has merit.

The liability of a county for torts of its officers and employees is dependent upon whether the activity in which the latter are involved is properly designated "governmental" or "proprietary" in nature, "a county [being] immune from torts committed by an employee carrying out a governmental function" and "liable for torts committed [by an employee] while engaged in a proprietary function." Hare v. Butler, 99 N.C.App. 693, 698, 394 S.E.2d 231, 235, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990).

Our Supreme Court has delineated the distinction between governmental and proprietary functions as follows:

When a municipality is acting `in behalf of the State' in promoting or protecting the health, safety, security or general welfare of its citizens, it is an agency of the sovereign. When it engages in a public enterprise essentially for the benefit of the compact community, it is acting within its proprietary powers. In either event it must be for a public purpose or public use.

So then, generally speaking, the distinction is this: If the undertaking of the municipality is one in which only a governmental agency could engage, it is governmental in nature. It is proprietary and `private' when any corporation, individual, or group of individuals could do the same thing. Since, in either event, the undertaking must be for a public purpose, any proprietary enterprise must, of necessity, at least incidentally promote or protect the general health, safety, security, or general welfare of the residents of the municipality.

Britt v. Wilmington, 236 N.C. 446, 450-51, 73 S.E.2d 289, 293 (1952).

In applying the foregoing test, our courts have focused upon the "commercial aspect of the definition." Hickman v. Fuqua, 108 N.C.App. 80, 83, 422 S.E.2d 449, 451 (1992),disc. review denied, 333 N.C. 462, 427 S.E.2d 621 (1993). "Charging a substantial fee to the extent that a profit is made is strong evidence that the activity is proprietary." Hare, 99 N.C.App. at 698,394 S.E.2d at 235. Nonetheless,

a `profit motive' is not the sole determinative factor when deciding whether an activity is governmental or proprietary. Using the Britt test, courts look to see whether an undertaking is one `traditionally' provided by the local governmental units.

Hickman, 108 N.C.App. at 84, 422 S.E.2d at 451-52 (citations omitted).

Certain activities qualify as "clearly governmental such as law enforcement operations and the operation of jails, public libraries, county fire departments, public parks and city garbage services." Hare, 99 N.C.App. at 698, 394 S.E.2d at 235. "Non-traditional governmental activities such as the operation of a golf course or an airport are usually characterized as proprietary functions." Id. at 699, 394 S.E.2d at 235.

In advocating designation of the Program as a traditional governmental activity, defendants rely upon Kiddie Korner v. Board of Education, 55 N.C.App. 134, 285 S.E.2d 110 (1981), disc. review denied, 305 N.C. 300, 291 S.E.2d 150 (1982), wherein this Court viewed an after-school program as a "supplemental educational experience" and as an operation within the defendant school board's "[legislatively granted] power and authority." Id. at 140, 285 S.E.2d at 114. In Kiddie Korner, the Charlotte-Mecklenburg Board of Education had established a committee to operate an after-school program at Dilworth Elementary School (the Dilworth program). Id. at 135-36, 285 S.E.2d at 112. The Dilworth program was designed to "alleviate the problem of the `latch key' child," i.e., a child "left without supervision between the time school closes and the time [the child's] parents come home from work." Id. at 135 n. 1, 285 S.E.2d at 112 n. 1.

Instead of leaving school at the end of the regular school day, the students enrolled in the [Dilworth] program remain[ed] at school where, under the supervision of program staff, they d[id] homework or study, and engage[d] in athletic or artistic activities.

Id. at 136, 285 S.E.2d at 112. "[T]he program [wa]s self-sufficient, the operating costs being covered by the $15.00 per week tuition charged to the participants." Id.

In similar vein, plaintiff testified she placed Michael in the Program because he "needed a safe place ... to stay after school until [his parents] could pick him up after work," thereby resolving plaintiff's "latch key" child situation. Further, like the Dilworth program, the Program herein did not constitute part of the regular school curriculum, charged a fee, and provided

recreation for ... children, a nutritious snack, homework time, ... tutoring in areas

...