Valevais v. City of New Bern
| Decision Date | 30 December 1970 |
| Docket Number | No. 703SC504,703SC504 |
| Citation | 10 N.C.App. 215,178 S.E.2d 109 |
| Parties | Azilee Parker VALEVAIS, Charles N. Parker, John R. Parker and Edgar L. Parker, Jr. v. The CITY OF NEW BERN. |
| Court | North Carolina Court of Appeals |
Robert G. Bowers, New Bern, for plaintiff appellants.
Barden, Stith, McCotter & Sugg by Laurence A. Stith and A. D. Ward, Ward & Ward, New Bern., for defendant appellee.
It is universally recognized that in the absence of statutory provision, there can be no recovery against a municipal corporation for injuries resulting from its negligence or nonfeasance in the exercise of functions essentially governmental in character. In the exercise of such functions, the municipal corporation is acting for the general public as well as the inhabitants of its territory, and in such capacity represents the general sovereignty of the state. Metz v. Asheville, 150 N.C. 748, 64 S.E. 881; Stone v. City of Fayetteville, 3 N.C.App. 261, 164 S.E.2d 542; 38 Am.Jur., Municipal Corporations, § 572, p. 261. The maintenance and operation of a fire department is a function which a municipality undertakes in its governmental capacity. Mabe v. Winston-Salem, 190 N.C. 486, 130 S.E. 169.
Plaintiffs do not dispute these principles, but contend they are not applicable here because their complaint alleges a breach of contract action rather than an action grounded in tort.
We examine first the question of whether a valid contract existed between the defendant and plaintiffs. Although the complaint does not specifically show the location of plaintiffs' property with respect to the corporate limits of defendant, for purposes of this opinion we treat the complaint, as did the parties in their briefs and upon oral arguments, as sufficient to show that: (1) at the time of the execution of the easement, the enactment of the ordinance, and the fire which is the subject of this suit, plaintiffs' property was located outside defendant's corporate limits and (2) defendant's duty to afford fire protection to plaintiffs' property arose, if at all, out of its acquisition of the easement and the subsequent resolution or ordinance.
The resolution or ordinance adopted by the Board of Aldermen specifically acknowledged that the granting of the easement by plaintiffs was conditioned upon the City's promise to afford them fire protection. The City had plenary authority to acquire an easement over plaintiffs' property for water and sewer purposes by purchase or condemnation. G.S. §§ 160--204 and 160--205. It also had the obligation to justly compensate plaintiffs for the property rights acquired. U.S.Const. amend. XIV, § 1; N.C.Const. art. 1, § 17. We know of no law or public policy which would have precluded the City from compensating plaintiffs for the property rights acquired by agreeing to furnish them fire protection. The legislature has authorized municipalities to agree to furnish and to furnish fire protection outside their corporate limits within certain specified areas. G.S. § 160--238. No contention is made by the defendant that the resolution or ordinance authorizing the protection of plaintiffs' property was ultra vires. We therefore hold that the City was obligated, by contract, to furnish fire protection to plaintiffs' property.
It does not follow, however, that plaintiffs' complaint states a claim for relief based upon breach of contract. There are no allegations that defendant has ever denied the obligation it assumed by resolution or ordinance to provide fire protection to plaintiffs' property. This action, insofar as the record shows, has never been rescinded. The alleged claim is based upon the failure of the members of the Fire Department to promptly respond to the fire call in spite of their duty to do so which arose under the direction of the resolution or ordinance. The members of the Fire Department were not the governing body of the City. They could not extend or withhold from plaintiffs a right to have the...
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