Jones v. Kearns

462 S.E.2d 245, 120 N.C. App. 301, 1995 N.C. App. LEXIS 834
CourtCourt of Appeals of North Carolina
DecidedOctober 3, 1995
DocketCOA95-1012
StatusPublished
Cited by32 cases

This text of 462 S.E.2d 245 (Jones v. Kearns) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Kearns, 462 S.E.2d 245, 120 N.C. App. 301, 1995 N.C. App. LEXIS 834 (N.C. Ct. App. 1995).

Opinions

MARTIN, MARK D., Judge.

Defendants appeal from a denial of their motion for summary judgment. We affirm in part, reverse in part, and remand.

Plaintiff filed this action 5 October 1993 against defendants Penny L. Kearns (Officer Kearns) and the City of Winston-Salem (the City) seeking money damages for injuries she sustained to her right foot on 6 October 1990 while a patron at the Dixie Classic Fair. The incident occurred when a horse ridden by Officer Kearns, an employee of the Winston-Salem Police Department assigned to the Special Operations Division, Mounted Patrol Unit, allegedly stepped on plaintiffs foot. The defendants denied the material allegations of plaintiffs complaint and pled the affirmative defenses of governmental immunity, public officers’ immunity, and contributory negligence.

On 15 April 1994 defendants filed a motion for summary judgment or, in the alternative, partial summary judgment, for damages of $250,000.00 or less on the ground of governmental immunity. On 7 [303]*303July 1994 the trial court entered an order denying defendants’ motion for summary judgment.

At the outset we note the trial court’s denial of defendants’ motion for summary judgment on the issue of governmental immunity is immediately appealable. Corum v. University of North Carolina, 97 N.C. App. 527, 531-532, 389 S.E.2d 596, 598 (1990), aff'd in part, rev’d in part on other grounds, 330 N.C. 761, 413 S.E.2d 276 (1992).

On appeal defendants contend the City of Winston-Salem is immune from suit in its governmental capacity for damages of $250,000.00 or less because the City is not indemnified by a contract of insurance for damages of $250,000.00 or less and is not a member of a local government risk pool.

A city may waive immunity in its governmental capacity through the purchase of liability insurance or by joining a local government risk pool. N.C. Gen. Stat. § 160A-485(a)(1994); Combs v. Town of Belhaven, 106 N.C. App. 71, 73, 415 S.E.2d 91, 92 (1992) (addressing purchase of insurance). However, a city generally retains immunity from civil liability in its governmental capacity to the extent it does not purchase liability insurance or participate in a local government risk pool pursuant to Article 23 of Chapter 58 of the General Statutes. N.C. Gen. Stat. § 160A-485.

At the time of the alleged incident, 6 October 1990, the City did not have liability insurance for damages of $250,000 or less. Although the City did have excess insurance, it was subject to a $250,000.00 retention per incident. Moreover, at the time of the alleged incident, the City was not participating in a local government risk pool pursuant to Article 39 of Chapter 58 of the General Statutes. Because immunity from suit for damages of $250,000.00 or less had not been waived at the time of the alleged incident, the City is entitled to partial summary judgment in its governmental capacity for damages of $250,000.00 or less.

Plaintiff contends the City is not entitled to governmental immunity because the Dixie Classic Fair is a proprietary function. Specifically, plaintiff contends the proprietary nature of the fair converts the provision of municipal law enforcement into a proprietary function and deprives the City of asserting the defense of governmental immunity.

[304]*304Assuming the application of governmental immunity under the present circumstances were a question of first impression, we believe plaintiffs arguments would carry great force. However, the clear and unambiguous precedent of our Supreme Court mandates that the question of whether the City is entitled to governmental immunity depends upon the mission or purpose of the municipal employee and whether the employee was acting in her official capacity at the time of the alleged negligence. We are bound by this precedent of the Supreme Court in our disposition of this case.

In the absence of governmental immunity, municipal tort liability is generally premised on the doctrine of respondeat superior. See Edwards v. Akion, 52 N.C. App 688, 279 S.E.2d 894 (1981) (applying respondeat superior principles in determining municipal tort liability for conduct of refuse collector), aff’d, 304 N.C. 585, 284 S.E.2d 518 (1981). As a corollary to this principle, our Supreme Court has squarely held that the key inquiry in determining whether a City retains immunity is the mission or purpose of the City’s employee at the time of the alleged negligence. Beach v. Tarboro, 225 N.C. 26, 28, 33 S.E.2d 64, 65-66 (1945). See also Rich v. City of Goldsboro, 282 N.C. 383, 386, 192 S.E.2d 824, 826 (1972) (focus on agent’s function allegedly causing injury); Clark v. Scheld, 253 N.C. 732, 737, 117 S.E.2d 838, 842 (1961) (focus on employee’s duty at the time of the injury); Hodges v. Charlotte, 214 N.C. 737, 741, 200 S.E. 889, 891 (1939) (focus on whether employee was performing duties incidental to a governmental function).

If at the time of the alleged negligence, the City’s officer or employee is performing a governmental function, governmental immunity protects a municipality, Taylor v. Ashburn, 112 N.C. App. 604, 607, 436 S.E.2d 276, 278 (1993) (citations omitted), cert, denied, 336 N.C. 77, 445 S.E.2d 46 (1994), and its officers and employees sued in their official capacity. Slade v. Vernon, 110 N.C. App. 422, 426, 429 S.E.2d 744, 746 (1993). In determining whether an activity is governmental, our Supreme Court in Beach explained the court must focus on the mission of the city’s employee who allegedly caused injury:

The mission of the town’s employee, out of which the alleged injury to the plaintiff arose, is the determining factor... not what such employee was called upon to do at other times and places, but what he was engaged in doing at the particular time and place alleged.

[305]*305Beach v. Tarboro, 225 N.C. at 28, 33 S.E.2d at 65-66. It is well established that law enforcement is. a governmental 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).

At the time of the alleged incident, Officer Kearns was assigned to patrol the Dixie Classic Fair in her capacity as a member of the Special Operations Division, Mounted Patrol Unit. More particularly, Officer Kearns was responding to a fellow officer’s radio call for assistance at the Midway because of a fight and resulting medical emergency. PlaintifUconcedes that Officer Kearns was employed as a police officer of the City of Winston-Salem at the time of the alleged accident. Plaintiff also concedes that, at the time of the alleged accident, Officer Kearns was assigned by the police department to the Dixie Classic Fair.

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Bluebook (online)
462 S.E.2d 245, 120 N.C. App. 301, 1995 N.C. App. LEXIS 834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-kearns-ncctapp-1995.