ERVIN, Judge.
Defendants Wilson County and Sleepy Hollow Development Company appeal from an order denying their motions for summary judgment with respect to the claims advanced
The factual basis underlying Plaintiffs' claims, to the extent that it is relevant to the issue properly before us at this time, was set out in our prior opinion in Bynum v. Wilson County, ___ N.C.App. ___, 716 S.E.2d 90 (2011) (unpublished) (Bynum I), in which we stated that:
Id., 2011 WL 3891361, at *1.
We also addressed the procedural history of this case in Bynum I, in which we stated that:
Bynum I, 2011 WL 3891361, at *2. As a result of the fact that Mr. Bynum died on 27 January 2011, Plaintiffs sought leave of court to substitute Mrs. Bynum, in her capacity as administratrix of Mr. Bynum's estate, for Mr. Bynum as a party plaintiff on 31 March 2011. This Court allowed the substitution motion on 15 April 2011. Id.
In Bynum I, we held that Defendant Wilson County's challenge to the denial of its
Bynum I, 2011 WL 3891361, at *5.
On 23 December 2011, Plaintiffs filed a motion seeking leave to amend their complaint in order to assert a wrongful death claim.
As a preliminary matter, we must identify the issues that are properly before us for appellate review. As was the case in Bynum I, Defendant Wilson County asserts, among other things, that the trial court erred by denying its motion for summary judgment based upon governmental immunity considerations. "This Court has held that appeals from interlocutory orders raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review." Williams v. Devere Constr. Co., Inc., ___ N.C.App. ___, ___, 716 S.E.2d 21, 25 (2011) (citing Price v. Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999) (other citations omitted)). As a result, Defendant Wilson County's challenge to the trial court's refusal to enter summary judgment in its favor on governmental immunity grounds is properly before us.
In addition, Defendants have also sought immediate review of the trial court's decision not to resolve Defendant Wilson County's non-immunity-related challenges and Defendant Sleepy Hollow's challenges to the trial court's order in their favor by denying Defendants' motion for summary judgment concerning these issues.
In attempting to persuade us to reach the merits of their non-immunity-related challenges to the trial court's order, Defendants note that this Court has, on occasion, addressed additional issues that have been presented for our consideration in an appeal that arose from a trial court decision concerning immunity-related issues. For example, Defendants cite RPR & Assocs. v. State, 139 N.C. App. 525, 530-32, 534 S.E.2d 247, 251-53 (2000), aff'd, 353 N.C. 362, 543 S.E.2d 480 (2001), in which we addressed a service of process argument, and Colombo v. Dorrity, 115 N.C. App. 81, 84, 86, 443 S.E.2d 752, 755, 756, disc. review denied, 337 N.C. 689, 448 S.E.2d 517 (1994), in which we addressed a statute of limitations issue. Although we held in these two instances that, given the specific factual and procedural contexts from which these cases arose, it would promote judicial economy to resolve these relatively clear-cut non-immunity-related issues in the same opinion in which we addressed the defendants' immunity-related arguments, we did not hold in either case that non-immunity-related issues would always be considered on the merits in the course of deciding an immunity-related interlocutory appeal or recognize the existence of a substantial right to have multiple issues addressed in the course of an immunity-related appeal. On the contrary, in most immunity-related interlocutory appeals, we have declined requests that we consider additional non-immunity-related issues on the merits. See, e.g., Green v. Kearney, 203 N.C. App. 260, 266, 690 S.E.2d 755, 764-65 (2010) (reviewing a defendant's challenge to the denial of an immunity-related dismissal motion on the merits while dismissing the remainder of the defendant's appeal as having been taken from an unappealable interlocutory order); Meherrin Indian Tribe v. Lewis, 197 N.C. App. 380, 384-85, 677 S.E.2d 203, 207-08 (2009) (reviewing the defendant's challenge to the trial court's immunity-related decision on the merits while dismissing the remainder of the defendant's appeal), disc. review denied, 363 N.C. 806, 690 S.E.2d 705 (2010). As we noted in Boyd v. Robeson Cty., 169 N.C. App. 460, 464-65, 621 S.E.2d 1, 4, disc. review denied, 359 N.C. 629, 615 S.E.2d 866 (2005):
(citing Jeffreys, 115 N.C.App. at 380, 444 S.E.2d at 254). Thus, we conclude, as we did in Bynum I, that the only issue properly before us at this time is the correctness of the trial court's decision to deny Defendant Wilson County's request for summary judgment in its favor on immunity-related grounds. For that reason, we dismiss Defendant Wilson County's attempted appeal from that portion of the trial court's order addressing non-immunity-related issues and grant Plaintiffs' motion to dismiss Sleepy Hollow's appeal in its entirety as having been taken from an unappealable interlocutory order.
Summary judgment is properly granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. [Gen. Stat.] § 1A-1, Rule 56(c) (2012). "`When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.'" In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001)). The moving party has the burden "to show the lack of a triable issue of fact and to show that he is entitled to judgment as a matter of law." Moore v. Crumpton, 306 N.C. 618, 624, 295 S.E.2d 436, 441 (1982) (citing Oestreicher v. Stores, 290 N.C. 118, 131, 225 S.E.2d 797, 806 (1976)). "The showing required for summary judgment may be accomplished by proving [that] an essential element of the opposing party's claim ... would be barred by an affirmative defense," Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citing Goodman v. Wenco Foods, Inc., 333 N.C. 1, 21, 423 S.E.2d 444, 454 (1992)), such as governmental immunity. "Our standard of review of a trial court's order granting or denying summary judgment is de novo." Bryson v. Coastal Plain League, LLC, ___ N.C.App. ___, ___, 729 S.E.2d 107, 109 (2012) (citing Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009)). "`Under a de novo review, the court considers the matter anew and freely substitutes its own judgment' for that of the lower tribunal." Craig, 363 N.C. at 337, 678 S.E.2d at 354 (quoting In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (internal citation omitted)).
In its brief, Defendant Wilson County argues that the trial court erroneously failed to enter summary judgment in its favor on immunity-related grounds given that the "alleged causes of Decedent's injuries include governmental functions which were performed by Wilson County[.]" More specifically, Defendant Wilson County contends that "zoning and inspection [are] governmental function[s,]" that "operating and maintaining a county office building is a governmental function," and that "Wilson County's water supply system is also a governmental function." In addition, Defendant Wilson County argues that Mr. Bynum's injuries did not stem from the operation of a water system.
"Sovereign immunity stands for the proposition that `the State cannot be sued except with its consent or upon its waiver of immunity.'" Dawes v. Nash Cty., 357 N.C. 442, 445, 584 S.E.2d 760, 762 (2003) (quoting Whitfield v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412, 414 (1998), and citing Guthrie v. State Ports Authority, 307 N.C. 522, 534, 299 S.E.2d 618, 625 (1983)). "The counties are recognizable units that collectively make up our state, and are thus entitled to sovereign immunity under North Carolina law." Archer v. Rockingham Cty., 144 N.C. App. 550, 553, 548 S.E.2d 788, 790 (2001), disc. rev. denied, 355 N.C. 210, 559 S.E.2d 796 (2002). "Nevertheless, governmental immunity is not without limit. `[G]overnmental immunity covers only the acts of a municipality or a municipal corporation committed pursuant to its governmental functions.' Governmental immunity does not, however, apply when the municipality engages in a proprietary function.... [In] determining whether an entity is entitled to governmental immunity, the result therefore turns on whether the alleged tortious conduct of the county or municipality arose from an activity that was governmental or proprietary in nature." Estate of Williams v. Pasquotank County, 366 N.C. 195, 199, 732 S.E.2d 137, 141 (2012) (quoting Evans v. Housing Auth. of City of Raleigh, 359 N.C. 50, 53, 602 S.E.2d 668, 670 (2004), and citing Grimesland v. Washington, 234 N.C. 117, 123, 66 S.E.2d 794, 798 (1951)). "`[A]lthough an activity may be classified in general as a governmental function, liability in tort may exist as to certain of its phases; and conversely, although classified in general as proprietary, certain phases may be considered exempt from liability. [In addition], it does not follow that a particular activity will be denoted a governmental function even though previous cases have held the identical activity to be of such a public necessity that the expenditure of funds in connection with it was for a public purpose.' Consequently, the proper designation of a particular action of a county or municipality is a fact intensive inquiry, turning on the facts alleged in the complaint, and may differ from case to case." Estate of Williams, 366 N.C. at 203, 732 S.E.2d at 143 (quoting Sides v. Hospital, 287 N.C. 14, 21-22, 213 S.E.2d 297, 302 (1975) (citations and emphases omitted)).
The fact-intensive nature of the determination of whether a plaintiff's suit is barred by governmental immunity is illustrated in Town of Sandy Creek v. East Coast Contr. Inc., ___ N.C.App. ___, 741 S.E.2d 673, 674 (2013) (Sandy Creek II), in which an engineering firm sought to recover damages for "breach of contract, negligence, and indemnity and contribution" associated with the construction of a sewer system. Id., 741 S.E.2d at 674. On remand for further consideration in light of Estate of Williams, we "recognize[d] that judicial precedent has previously held that construction of a sewer system is a governmental function." Id., 741 S.E.2d at 676 (citing McCombs v. City of Asheboro, 6 N.C. App. 234, 170 S.E.2d 169 (1969)). However, after concluding that "[construction of a sewer system] is not the nature of the claim in this case," we pointed out that "`[the] allegations of breaches of the duty of reasonable care [at issue in this case] do not concern decisions of governmental discretion such as whether to construct a sewer system or where to locate the sewer system'" and noted that, instead, "`the alleged breaches concern [the municipality's] handling of the contract and [its] business relationship with the contractor, acts that are not inherently governmental but are commonplace among private entities.'" Id. (quoting Town of Sandy Creek v. East Coast Contr., Inc., ___ N.C.App. ___, ___ 736 S.E.2d 793, 797-98 (2012) (Sandy Creek I) (superseded by Sandy Creek II)). Thus, we held "that a local governmental unit acts in a proprietary function when it contracts with engineering and construction companies, regardless of whether the project under construction will be a governmental function once it is completed." Sandy Creek II, 741 S.E.2d at 677.
A reliance on the same fact-intensive approach to determining whether a particular activity should be deemed governmental or proprietary for governmental-immunity purposes can be seen in other cases as well. For example, in Aaser v. Charlotte, 265 N.C. 494, 497, 144 S.E.2d 610, 613 (1965), in which
An analysis of these and similar cases reveals that the determinative factor to be considered in ascertaining whether a particular injury resulted from a governmental or proprietary activity is the nature of the plaintiff's involvement with the governmental unit and the reason for the plaintiff's presence at a governmental facility rather than the underlying tasks which the governmental entity allegedly performed in a negligent manner. Although Aaser held that operation of a municipal arena was a proprietary function and Robinson and Seibold held that operating a register of deeds' office and a library were governmental functions, none of these decisions rested on a determination of the extent to which the particular actions that might have prevented the plaintiff's injury, such as posting guards in the Coliseum or maintaining the buildings in which the register of deeds office and library were housed, were "governmental" or "proprietary" in nature. As a result, instead of holding "that maintaining county property is a governmental function," the pertinent cases hold that, where a plaintiff is injured as a result of his or her involvement with a governmental function, such as transacting business at the register of deeds office or borrowing a book from a public library, the relevant governmental entity is immune from suit. On the other hand, if a plaintiff is injured as a result of his or her involvement with a proprietary function, such as attending an event at a governmentally owned facility, then governmental immunity is not available.
According to the undisputed evidence before the trial court, Mr. Bynum was injured after falling on the steps of a building maintained by Wilson County and utilized for a number of different purposes, including providing a place where customers of the county's water system could pay their bills. Mr. Bynum had visited the building to pay his water bill and was injured as he left the building after making a payment. Although Defendant Wilson County argues that the operation of a water system is a governmental function, it only cites cases discussing other services, such as the operation of a jail or library, in support of this proposition. An examination of the decisions of this Court and the Supreme Court addressing the status of governmentally owned water systems for immunity-related purposes indicates, however, Defendant Wilson County's argument lacks merit.
The Supreme Court has "long held that a municipal corporation selling water for private consumption is acting in a proprietary capacity and can be held liable for negligence just like a privately owned water company." Fussell v. N.C. Farm Bureau Mut. Ins. Co., 364 N.C. 222, 225, 695 S.E.2d 437, 440 (2010) (citing Mosseller v. City of Asheville, 267 N.C. 104, 107, 147 S.E.2d 558, 561 (1966)). In other words, "[w]hen a municipal corporation operates a
As we have already noted, a governmental entity acting in a proprietary capacity "`is regarded as a legal individual. [which] may be held to that degree of responsibility which would attach to an ordinary corporation.'" Pulliam v. City of Greensboro, 103 N.C. App. 748, 751, 407 S.E.2d 567, 568 (quoting McCombs, 6 N.C.App. at 238, 170 S.E.2d at 172) (internal citation omitted), disc. review denied, 330 N.C. 197, 412 S.E.2d 59 (1991). For that reason, "a municipal corporation selling water for private consumption... is potentially liable for negligent acts of its agents or employees done in the scope of their agency or employment." Fussell, 364 N.C. at 225, 695 S.E.2d at 440 (citing Jones v. Gwynne, 312 N.C. 393, 409, 323 S.E.2d 9, 18 (1984), and Munick v. Durham, 181 N.C. 188, 195, 106 S.E. 665, 668 (1921) (stating that, "[w]hen cities are acting in their corporate character, or in the exercise of powers for their own advantage, they are liable for damages caused by the negligence or torts of their officers or agents")).
According to well-established North Carolina law, a business owner is liable for the negligent maintenance of buildings in which customers may pay their bills.
In seeking to persuade us to reach a contrary conclusion, Defendant Wilson County notes, among other things, that Plaintiffs have alleged that it is liable based, at least in part, on the basis of an allegedly negligent zoning and inspection of the county building at which Mr. Bynum's fall occurred. More specifically, Defendant Wilson County argues that, because zoning and building inspection are governmental functions, it should be deemed immune from suit in any civil action in which allegations of negligent zoning and inspection are made. However, the ultimate issue in this case is Defendant Wilson County's liability for negligence in connection with the operation of its water system, including its alleged failure to provide a reasonably safe place at which its customers could pay their bills or conduct other water system-related business. The assertions that Plaintiffs have made with respect to zoning and inspection-related issues relate to their contention that Defendant Wilson County asserted jurisdiction over the building in question for zoning and inspection-related purposes in an effort to avoid making modifications to or repairs of the building and do not constitute contentions that Defendant Wilson County erred in the course of making specific zoning or inspection-related decisions. As a result of the fact that, as we have already established, the determination of whether a governmental entity was engaging in a governmental or proprietary activity at the time that the plaintiff was injured focuses on the nature of the activity which led to the plaintiff's injury and the fact that the zoning and inspection-related issues which Plaintiffs have raised do not involve any effort to look behind specific zoning and inspection-related decisions that Defendant Wilson County made, we do not believe that this aspect of Defendant Wilson County's argument has merit.
In addition, Defendant Wilson County posits that, because the water system's office is located in a county building, it is immune from suit on the grounds that "Wilson County is entitled to governmental immunity for operating its main office building." As we understand this argument, Defendant Wilson County is contending for the recognition of a general rule affording immunity from suit for any injury which might have occurred in connection with the "operat[ion] and maintain[ance of] a county office." The decisions upon which Defendant Wilson County relies in support of this proposition, however, find the existence of immunity from suit based on the nature of the underlying function being performed at the time of the plaintiff's injury rather than the nature of the tasks associated with maintenance of a governmentally owned building. E.g. Hayes v. Billings, 240 N.C. 78, 80, 81 S.E.2d 150, 152 (1954) (county jail); Seibold v. Kinston, 268 N.C. 615, 620-21, 151 S.E.2d 654, 658 (1966) (public library); Doe v. Jenkins, 144 N.C. App. 131, 134, 547 S.E.2d 124, 127 (2001) (county courthouse), disc. review denied, 355 N.C. 284, 560 S.E.2d 799 (2002); and Robinson, 43 N.C.App. at 36, 257 S.E.2d at 681 (register of deeds office). We are unable to read any of these decisions as holding, consistently with Defendant Wilson County's position, that a county or municipality is immune from any suit seeking recovery for injuries allegedly resulting from the "maintenance" of a governmentally owned building, regardless of the manner in which the building is used or the reason for the plaintiff's presence at that building.
We do, however, recognize that our reading of the applicable law raises the prospect for potentially troubling results, such as making liability for falls like that suffered by Mr. Bynum contingent upon whether a plaintiff injured in a fall at a county-owned office building used for multiple purposes was on the premises for the purpose of paying a bill for water service or seeking the issuance of a building permit. On the other hand, the adoption of the approach advocated by Defendant Wilson County creates a risk of equally anomalous results, given that, under its understanding of the applicable law, an individual injured in a fall while paying a water bill would be able to pursue a damage recovery in the event that the governmentally owned water system was operated from a separate building while having no right to pursue such a recovery in the event that the water system was operated from a building that contained other offices performing clearly governmental functions.
The existence of anomalies similar to those that result from the adoption of either approach advocated in this case have been recognized in a slightly different context by the Supreme Court:
Faw, 253 N.C. at 409-10, 117 S.E.2d at 17 (citing Klassette v. Drug Co., 227 N.C. 353, 360, 42 S.E.2d 411, 416 (1947); Woodie v. North Wilkesboro, 159 N.C. 353, 356, 74 S.E. 924, 925 (1912) (additional citation omitted)); see also, e.g., Candler, 247 N.C. at 406, 101 S.E.2d at 476 (stating that "public utilities, like water ... are not provided by a municipality in its political or governmental capacity, except insofar as they may furnish water for extinguishing fires and for other municipal purposes") (citing Fawcett v. Mt. Airy, 134 N.C. 125, 129, 45 S.E. 1029, 1030 (1903); Harrington v. Greenville, 159 N.C. 632, 635-36, 75 S.E. 849, 850-51 (1912); Howland v. Asheville, 174 N.C. 749, 750, 94 S.E. 524, 524-25 (1917); and Klassette, 227 N.C. at 360, 42 S.E.2d at 416). A careful reading of these cases suggests that, in the event that a county or city water system negligently allows a water pipe to burst, the county would not be immune from a suit stemming from damage to the plaintiff's property resulting from water intrusion while being entitled to assert immunity from a suit alleging that, as a result of the same burst water pipe, the plaintiff had been unable to have a fire that burned his or her residence extinguished. Although such results may seem arbitrary or illogical, they are inherent in the application of the dichotomy between governmental and proprietary functions required by North Carolina law. As the Supreme Court stated in Koontz v. City of Winston-Salem, 280 N.C. 513, 528, 186 S.E.2d 897, 907 (1972):
Even so, "it is axiomatic that any change to the law in this area must come from the legislature, not the courts." Clayton v. Branson, 170 N.C. App. 438, 460, 613 S.E.2d 259, 274 (citing Blackwelder v. City of Winston-Salem, 332 N.C. 319, 324, 420 S.E.2d 432, 435-36 (1992) (stating that, while "plaintiff asks us either to abolish governmental immunity or to change the way it is applied," "any change in this doctrine should come from the General Assembly."), disc. review denied, 360 N.C. 174, 625 S.E.2d 785 (2005)).
Thus, for the reasons set forth above, we conclude that Plaintiffs' motion to dismiss Sleepy Hollow's appeal from the trial court's order as having been taken from an unappealable interlocutory order should be allowed, that Defendant Wilson County's attempt to assert non-immunity-related challenges to the trial court's order should be dismissed for the same reason, and that the trial court did not err by denying Defendant Wilson County's motion for summary judgment on governmental immunity grounds. As a result, the trial court's order should be, and hereby is, affirmed in part and Defendant's appeals should be, and hereby are, dismissed in part.
AFFIRMED IN PART AND DISMISSED IN PART.
Chief Judge MARTIN and Judge DILLON concur.