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Governmental Immunity in North Carolina and the Distinction between Proprietary and Governmental Functions


North Carolina is a difficult state in which to file a negligence lawsuit. Aside from the harsh contributory negligence rule, there are a host of other provisions which tend to treat the victim as the bad guy. Among those rules is the sovereign immunity doctrine. This tenet of the common law was created centuries ago in England based upon the idea that “the king can do no wrong.” Sovereign immunity shields governmental entities from suits for negligence or other torts, even when they were blatantly at-fault. There are, however, certain exceptions that can provide an injured person the right to recover his or her damages from the government.

The first exception exists when the city, county, or state has waived its governmental immunity through the purchase of liability insurance. That topic was discussed in our blog here.

If the government has not purchased insurance, you should examine the nature of its activities. The entity is only entitled to immunity if the function leading to the injury was a “governmental” function rather than a “proprietary” function. The distinction between the two is a fine line. It was recently discussed by the North Carolina Supreme Court in Estate of Williams v. Pasquotank County Parks and Recreation Dept.

In Williams, a young boy had drowned in a “swimming hole” rented out by Pasquotank County. The administrator of his estate brought suit alleging wrongful death against the County which, in turn, pled the defense of sovereign immunity. The question for the Court was whether operating “Fun Junktion” and charging a $75.00 fee was a governmental function or was proprietary. Prior to the case going to the Supreme Court, the North Carolina Court of Appeals set forth four factors to help determine whether a governmental entity was acting within its governmental or proprietary powers:

(1) Whether the undertaking is one traditionally provided by local governments;

(2) If the undertaking is one in which only a governmental agency could engage;

(3) Whether the governmental unit charged a substantial fee; and

(4) If a fee was charged, whether a profit was made.

As the Supreme Court reviewed the case, it noted that the key was whether the action was “commercial,” rather than being performed for the general public good. The Court of Appeals focused more heavily on (2), whether the function is one in which only a governmental agency could engage. The Supreme Court ultimately directed the case to be re-evaluated by the trial court in light of its discussion.

Sovereign immunity is one of most complex areas of North Carolina law. If you or a loved one has been injured because of the negligence of a governmental entity or one of its employees, you likely need legal representation in order to recover any damages. You may contact the Raleigh personal injury attorneys of Maginnis Law at 919.480.8526 or 919.526.0450 or send a confidential email using our contact page.

All consultations with Maginnis Law are free of charge and we offer contingency fee arrangements to personal injury clients. This means you pay no fee unless we recover on your behalf. We represent clients throughout eastern and middle North Carolina, including Raleigh, Durham, Cary, Chapel Hill, Fayetteville, Greensboro, Greenville, and the surrounding areas.

 

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