Matternes v. City of Winston-Salem ( 1974 )

Justice Sharp

concurring:

I concur in the majority opinion upon the following premise : Under the applicable statutes, the City’s agreement to maintain State Highway system streets within the City in accordance with the Board’s requirement and under the control of its division engineer made the City the Board’s employee. The contract, specifically authorized by statute, did not transfer to the City the responsibility for the maintenance, repair, and upkeep of the streets, which G.S. 136-66.1 imposed upon the Board. Nor did it recreate in the City the liability from which G.S. 160A-297 (a) specifically absolves it for injuries to persons and property resulting from defects in city streets under the Board’s authority. Had the legislature intended the Board’s contract with the City for street maintenance to reimpose liability on the City for injuries resulting from defects in State Highway system streets, it seems that it would have so provided. In my view, neither the City’s total immunity nor the Board’s liability under the Tort Claims Act was affected by the contract. Summary judgment for the defendant was, therefore, properly allowed.

From that portion of the majority opinion which discusses the rights of third party beneficiaries to a contract to maintain an action for its breach, I must disassociate myself. I do not agree that members of the traveling public are merely “incidental beneficiaries” of the contract which defendant City made with the Board. Further, it is not my intention to overrule or question Gorrell v. Water Supply Co., 124 N.C. 328, 32 S.E. 720 (1899). I adhere to the rule of law enunciated in that case, which is deeply embedded in our jurisprudence.