NC Supreme Court: In considering applicability of governmental immunity, analysis of whether function is governmental or proprietary must start with relevant legislation
On June 10, 2007, Erik Dominic Williams drowned at Fun Junktion, a public park owned by defendant Pasquotank County and maintained and operated by defendant Pasquotank County Parks & Recreation Department. Williams's estate later sued the defendants, alleging that their negligence resulted in his death at the "Swimming Hole," an area of the park that was rented out to private parties.
The defendants appealed to the Court of Appeals. In a unanimous decision, the COA affirmed the denial of summary judgment for the defendants, concluding that the defendants were engaged in a proprietary function because the services they provided could also be provided by private entities.
The defendants then petitioned the Supreme Court for discretionary review, which the Court granted. Recognizing the increasing difficulty in identifying services that can only be provided by a governmental entity, the Court explained the inquiry to be applied when distinguishing between governmental and proprietary functions.
The threshold inquiry is whether the legislature has addressed the issue. If the legislature has not resolved the question, then the court looks to other factors. If the undertaking is one in which only a governmental agency could engage, it is a governmental function. However, if the service can be performed by governmental or private entities, then the court must consider whether the service is traditionally a service provided by a governmental entity, whether a substantial fee is charged for the service provided, and whether that fee does more than simply cover the operating costs of the service provider. The Court cautioned that no single factor is dispositive, and emphasized that the governmental-vs.-proprietary question is a fact-sensitive analysis that may vary from case to case.
The Court determined that remand was necessary because the COA had not sufficiently addressed North Carolina's Recreation Enabling Law, N.C. Gen. Stat. § 160A-351, which was relevant to determining whether the defendants' maintenance and operation of the Swimming Hole was a governmental or proprietary function. The Court explained that even if, under the statute, the operation of parks and recreation programs is generally a governmental function, the question remains whether the specific operation of the Swimming Hole at Fun Junktion, under the circumstances particular to this case, is a governmental function. Accordingly, the Court expressed no opinion on whether the defendants are ultimately entitled to governmental immunity, but remanded to the COA for further remand to the trial court to consider the application of N.C. Gen. Stat. § 160A-351 to this case.
Related links: Parties' and amicus briefs; COA opinion.