Rich Ex Rel. Taylor v. City of Goldsboro , 282 N.C. 383 ( 1972 )

192 S.E.2d 824 (1972) 282 N.C. 383

Jane RICH and Vicky Kim Rich, by her Guardian Ad Litem, George F. Taylor
v.
CITY OF GOLDSBORO.

No. 65.

Supreme Court of North Carolina.

December 13, 1972.

Sasser, Duke & Brown, by John E. Duke, and J. Thomas Brown, Jr., Herbert B. Hulse, Goldsboro, for plaintiffs appellees.

Taylor, Allen, Warren & Kerr, by John H. Kerr, III, Goldsboro, for defendant appellant.

HIGGINS, Justice.

This case involves the legal question whether Goldsboro is liable in damages for the negligent acts of its officers or agents in failing to inspect, discover defects, and keep in good repair the playground equipment in Herman Park, the city's public playground. In determining liability, the Court is confronted with the well established rule that generally a municipal corporation is immune to suit for negligence of its agents in the performance of its governmental functions. However, the rule is subject to this modification: A city may be liable if the injury occurs while the agents of the city are performing a proprietary rather than a governmental function. Orange County v. Heath, 282 N.C. 292, 192 S.E.2d 308; Koontz v. Winston-Salem, 280 N.C. 513, 186 S.E.2d 897; Steelman v. New Bern, 279 N.C. 589, 184 S.E.2d 239; Galligan v. Chapel Hill, 276 N.C. 172, 171 S.E.2d 427; Glenn v. Raleigh, 248 N.C. 378, 103 S.E.2d 482; Glenn v. Raleigh, 246 N.C. 469, 98 S.E.2d 913.

The Court of Appeals, as authority for reversing the judgment of the superior court, relied on a statement in White v. Charlotte, 211 N.C. 186, 189 S.E. 492. The statement is repeated in Glenn v. Raleigh, 246 N.C. 469, 98 S.E.2d 913, intimating that a suit may be maintained against the city for injuries arising out of the negligence maintenance of playground equipment in a city's public park. Actually, in White v. Charlotte, supra, the plaintiff sued for damages resulting from the wrongful death of the plaintiff's intestate who fell or was thrown from a defective swing in a city park. Judgment of nonsuit was entered in the superior court and notwithstanding the statement, this Court affirmed the nonsuit. The authority for the above statement cited in White, is Fisher v. New Bern, 140 N.C. 506, 53 S.E. 342. In Fisher this Court was discussing the liability of a city for injuries caused by the agents of the city's Water and Light Commission performing proprietary functions for which the city received income. The Court said: "If, as in cities and towns, they have both governmental and business corporate powers conferred, their liability to suits for the torts of their servants and agents depends upon the sphere of activity in which the wrong complained of is committed."

This Court has held (Glenn v. Raleigh, 246 N.C. 469, 98 S.E.2d 913) that: "In order to deprive a municipal corporation of the benefit of governmental immunity, however, the act or function must involve special corporate benefit or pecuniary profit inuring to the municipality."

This Court has also held that a city, in operating its parks and playgrounds for the benefit of the public, is acting in its proper governmental capacity. Atkins v. Durham, 210 N.C. 295, 186 S.E. 330, citing many cases.

The evidence in the cases of Glenn v. Raleigh, supra, showed the city received income from park charges amounting to 11% of the entire operating cost. In Koontz, the city received revenue equaling 9½% of the entire cost of operating the landfill.

In the case now under review, the City of Goldsboro received from the Kiwanis Club the sum of $1,200.00 which was less than one percent of the operating costs. The trial court properly concluded the Kiwanis Club's donation was incidental income, totally insufficient to support a conclusion the city was operating Herman Park as a proprietary or business venture.

In Glenn v. Raleigh, 246 N.C. 469, 98 S.E.2d 913, the superior court entered judgment for the plaintiff and this Court, finding error in the charge, granted a new trial.

On the second hearing, the evidence disclosed that the City of Raleigh, during the year of Glenn's injury, received from Pullen Park revenue amounting to $18,531.14 and the total outlay for the year in operating Pullen Park was $25,135.00. Based upon the ground the income was of sufficient financial advantage to the city to constitute the operation of Pullen Park a proprietary rather than a governmental operation, the holding withdrew from the City of Raleigh the right to claim the benefit of governmental immunity. The holding in Glenn was based upon the fact the evidence showed the city operated the park as a business enterprise rather than in the governmental capacity of providing recreation for its citizens.

In discussing a city's liability for negligently inflicting injury, this Court in James v. Charlotte, 183 N.C. 630, 112 S.E. 423, said:

"Again it is insisted that the city is not protected from liability in this instance because it charges a fee for removal of garbage, but the position is without merit. True . . . where a municipal corporation enters into the business of selling light and power . . . for profit, they are not regarded as being in the exercise of governmental functions, and under proper circumstances may be held to civil liability. . . ."

"But the principle invoked has no application where, as in this instance, the city merely makes a charge covering actual expense. . . ."

In the action now under review, the receipt of $1,200.00 donated by the Kiwanis Club as one-half of its profits in operating the Kiddie Train must be classed as "incidental income," insufficient to constitute a waiver of Goldsboro's governmental immunity against suit. Hamilton v. Hamlet, 238 N.C. 741, 78 S.E.2d 770; Stephenson v. Raleigh, 232 N.C. 42, 59 S.E.2d 195.

Although the doctrine of governmental immunity has been under attack and has been abandoned in some states, nevertheless, the doctrine still prevails in North Carolina except in limited instances not applicable to this case. For a full discussion, see Steelman v. New Bern, supra.

The Legislature has provided by G.S. § 160-191.1 (now § 160A-485) that towns and cities may, by obtaining liability insurance to the extent thereof, waive their right to claim governmental immunity for the negligent acts of their agents in the operation of motor vehicles. Even though the City of Goldsboro may have general liability insurance, the statute authorizes a waiver only in actions involving the operation of motor vehicles. The waiver does not cover maintenance of playground equipment. Neither Koontz nor Glenn, nor any other case, furnishes authority for holding the City of Goldsboro waived its immunity from suit on the basis of a $1,200.00 donation made by the Kiwanis Club from its receipts for fares on a Kiddie Train which the Club operated in the city's park.

The Superior Court of Wayne County was correct in entering summary judgment for the city, dismissing the action on the ground that Goldsboro has not waived its governmental immunity. On the motion for summary judgment, the trial court properly considered the pleadings, affidavits, answers to interrogatories, and documentary evidence. In such instances where no real issue of fact is involved, summary judgment is proper. Koontz v. Winston-Salem, supra.

The decision of the North Carolina Court of Appeals is

Reversed.