Jennings v City of Fayetteville
Annotate this Case
Download PDF
NO. COA09-92 NORTH CAROLINA COURT OF APPEALS Filed: 4 August 2009 JESSE JENNINGS, III & LINDA G. KING as Personal Representatives of the ESTATE OF JESSE MARQUIL KING, DECEASED Plaintiffs, v. Cumberland County No. 07 CVS 6370 THE CITY OF FAYETTEVILLE, NORTH CAROLINA, A Body Politic and Municipal Corporation, Defendant. Appeal by defendant from judgment entered 13 October 2008 by Judge Robert F. Floyd, Jr., in Cumberland County Superior Court. Heard in the Court of Appeals 11 June 2009. Mitchell Brewer Richardson, by Ronnie M. Mitchell and Coy E. Brewer, Jr., for plaintiff. Lewis, Deese & Nance, LLP, by James R. Nance, Jr., and Karen M. McDonald, for defendant. ELMORE, Judge. This case concerns whether the City of Fayetteville (defendant) can face liability arising from its operation of a storm drain system. In 2005, Jesse Marquil King (decedent) drowned when he was caught in a heavy rainstorm and swept into an open ditch that was under the jurisdiction of defendant. representatives of decedent s estate against defendant in Cumberland County. (plaintiffs) The personal filed suit The trial court denied -2defendant s motion requesting governmental immunity from liability resulting from the operation of a storm drain system. filed an interlocutory appeal to this Court. Defendant We affirm the trial court s order. FACTS On 15 August 2005, decedent, aged seventeen years, was caught in a heavy rainstorm on Spruce Street in Fayetteville. Water flooded a ditch and spread across the paved roadway. Decedent left the roadway and entered private property, presumably to try to get around the water, where he apparently slipped and fell into the ditch. He was pulled underwater and drowned when he became stuck in a drainage pipe that had been clogged with a tree branch. Plaintiffs filed suit on 7 August 2007, seeking damages for wrongful death as a result of defendant s negligence in maintaining the storm drain system. Defendant alleged, inter alia, that it was protected by governmental immunity because the operation of a storm drain system is a governmental activity for which it had not waived immunity. On 29 September 2008, the trial court denied defendant s motion for summary judgment on the basis of governmental immunity. Defendant appealed the ruling to this Court. For the reasons stated below, we affirm the trial court s order. ARGUMENT Defendant argues that the trial court erred by denying the motion for summary governmental immunity. judgment on We disagree. the issue of defendant s -3An appeal from an order denying a motion for summary judgment is interlocutory because the order does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy. Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). appeals are immediately appealable substantial right of the parties. (2007). only when Interlocutory they affect a N.C. Gen. Stat. § 1-277(a) Claims of immunity affect a substantial right, and, therefore, are immediately appealable. Summey v. Barker, 142 N.C. App. 688, 689, 544 S.E.2d 262, 264 (2001). We review a trial court s rulings on summary judgment de novo. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007). Summary judgment can be properly granted only where 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 judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56 (c) (2007). [M]unicipalities in North Carolina are immune from liability for their negligent acts arising out of governmental activities unless the municipality liability insurance. waives such immunity by purchasing Anderson v. Town of Andrews, 127 N.C. App. 599, 600, 492 S.E.2d 385, 386 (1997). However, municipalities do not enjoy immunity for their non-governmental actions. Evans v. Housing Auth. of City of Raleigh, 359 N.C. 50, 53, 602 S.E.2d 668, 670 (2004). -4Defendant maintains that its operation of a storm drain system is a governmental activity, and, therefore, defendant should not face liability except for amounts covered by any insurance it has purchased. However, our Supreme Court has stated that a municipality may be held liable for negligence in storm drain maintenance. Milner Hotels, Inc. v. Raleigh, 268 N.C. 535, 537, 151 S.E.2d 35, 37 (1966), modified on reh g, 271 N.C. 224, 155 S.E.2d 543 (1967) ( The duty of maintaining sewers and drains in good repair includes the obligation to keep them free of obstruction, and a municipality is liable for negligence in its exercise to any person injured by such negligence. ); Gore v. City of Wilmington, 194 N.C. 450, 458, 140 S.E. 71, 75 (1927) ( Under the general power to grade and improve streets or construct public improvements beneficial to it, [a city] cannot deprive others of their legal rights in respect of the watercourse or injure the property of others by badly constructed and insufficient culverts or passageways obstructing the free flow of the water without being liable therefor. ). Since Milner, this Court has considered the issue, with conflicting results. See Kizer v. City of Sanford, 121 N.C. App. 526, 528, 466 S.E.2d 336, 338 (1996) ( [S]torm drain maintenance does not enjoy governmental immunity. ); but see Stone v. City of Fayetteville, 3 N.C. App. 261, 264, 164 S.E.2d 542, 545 (1968) ( [W]hile our Supreme Court recognizes the right of recovery against a municipal corporation for property damage on the theory that one whose property is appropriated for public purposes is entitled to just compensation therefor, it recognizes immunity of -5a municipal corporation from liability for personal injury or death arising from the maintenance of a ditch used for drainage and sewerage. ). Defendant urges this Court to reconsider the issue of municipality liability for storm drain maintenance in light of this State s passage of storm water regulations in response to the federal Clean Water Act. See N.C. Gen. Stat. § 143-214.7(c) (2007) ( The [North Carolina Environmental Management] Commission shall develop model storm water management programs that may be implemented by State agencies and units of local government. Model storm water management programs shall be developed to protect existing water uses and assure compliance with water quality standards and classifications. ). Defendant argues that storm drain maintenance should be considered a governmental activity because defendant is performing a duty on behalf of the State pursuant to this legislation. However, in Kizer, the sole case on point heard by either this Court or our Supreme Court since the Act s passage, this Court held that storm drain maintenance does not enjoy governmental immunity and affirmed the trial court s denial of a municipal defendant s motion for summary judgment based on governmental immunity. at 338. Kizer, 121 N.C. App. at 528, 466 S.E.2d As in Kizer, the present case deals with a storm drain system where the municipality tried to claim governmental immunity during a time when the Clean Water Act was in effect. Where one panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same -6court is bound by that precedent, unless it has been overturned by a higher court. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). In the present case, our Supreme Court has not overturned or modified this Court s holding in Kizer, and we are bound by its holding that municipalities do not enjoy governmental immunity from liability resulting from their operation of storm drain systems. For the reasons stated above, defendant s argument is overruled, and we affirm the trial court s order denying summary judgment to defendants on the matter of governmental immunity. Affirmed. Judges BRYANT and CALABRIA concur.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
