{ "id": 8522588, "name": "ANDRE L. HICKMAN, a Minor by his Guardian Ad Litem, T. DANIEL WOMBLE, Plaintiff v. DERRICK MONTRIC FUQUA, HELEN W. NICHOLS, Individually and d/b/a TINY TIM NURSERY AND KINDERGARTEN, CITY OF WINSTON-SALEM, WINSTON-SALEM TENNIS INC., DAVID L. LASH, Defendants; WILLIAM L. HICKMAN and wife, ROSLYN R. HICKMAN, Plaintiffs v. DERRICK MONTRIC FUQUA, HELEN W. NICHOLS, Individually and d/b/a TINY TIM NURSERY AND KINDERGARTEN, CITY OF WINSTON-SALEM, WINSTON-SALEM TENNIS INC., DAVID L. LASH, Defendants", "name_abbreviation": "Hickman v. Fuqua", "decision_date": "1992-11-17", "docket_number": "No. 9121SC804", "first_page": "80", "last_page": "85", "citations": [ { "type": "official", "cite": "108 N.C. App. 80" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "40 ALR2d 927", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "60 ALR2d 1198", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "399 S.E.2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495648, 2499943, 2496788, 2493082, 2500123 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0634-02", "/nc/327/0634-03", "/nc/327/0634-04", "/nc/327/0634-05", "/nc/327/0634-01" ] }, { "cite": "394 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "235" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524694 ], "year": 1990, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0693-01" ] }, { "cite": "213 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "303" }, { "page": "304" } ], "opinion_index": 0 }, { "cite": "287 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560927 ], "year": 1975, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0014-01" ] }, { "cite": "246 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627058 ], "opinion_index": 0, "case_paths": [ "/nc/246/0469-01" ] }, { "cite": "192 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "826", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "282 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565286 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0383-01" ] }, { "cite": "103 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "parenthetical": "Court considered revenue of a single park in connection with the overall budget requirements for operation of the City's entire recreation program" } ], "opinion_index": 0 }, { "cite": "248 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623342 ], "year": 1958, "pin_cites": [ { "parenthetical": "Court considered revenue of a single park in connection with the overall budget requirements for operation of the City's entire recreation program" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0378-01" ] }, { "cite": "267 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "Court looked only at the pecuniary aspects of the disputed family planning program and not at the entire health department program" } ], "opinion_index": 0 }, { "cite": "300 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561380, 8561355, 8561335, 8561401, 8561310 ], "year": 1980, "pin_cites": [ { "parenthetical": "Court looked only at the pecuniary aspects of the disputed family planning program and not at the entire health department program" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0371-04", "/nc/300/0371-03", "/nc/300/0371-02", "/nc/300/0371-05", "/nc/300/0371-01" ] }, { "cite": "263 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "Court looked only at the pecuniary aspects of the disputed family planning program and not at the entire health department program" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 522", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549793 ], "year": 1980, "pin_cites": [ { "parenthetical": "Court looked only at the pecuniary aspects of the disputed family planning program and not at the entire health department program" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0522-01" ] }, { "cite": "73 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1952, "pin_cites": [ { "page": "293" }, { "page": "293" } ], "opinion_index": 0 }, { "cite": "236 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626272 ], "year": 1952, "pin_cites": [ { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0446-01" ] }, { "cite": "186 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "907" } ], "opinion_index": 0 }, { "cite": "280 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572831 ], "year": 1972, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0513-01" ] }, { "cite": "420 S.E.2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2503328 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0319-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "denial of a motion for summary judgment based on immunity defenses to a 42 U.S.C. \u00a7 1983 action is immediately appealable" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "year": 1992, "pin_cites": [ { "parenthetical": "denial of a motion for summary judgment based on immunity defenses to a 42 U.S.C. \u00a7 1983 action is immediately appealable" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "400 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "101 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528017 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/101/0636-01" ] } ], "analysis": { "cardinality": 672, "char_count": 12320, "ocr_confidence": 0.738, "pagerank": { "raw": 3.7237038666378273e-07, "percentile": 0.8939685286671153 }, "sha256": "1c0f905785007c22484a6abf64f99ce3b286110e7655e43d183ed198d096b804", "simhash": "1:219dce2609ec37fe", "word_count": 1947 }, "last_updated": "2023-07-14T21:33:37.144077+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge WYNN concur." ], "parties": [ "ANDRE L. HICKMAN, a Minor by his Guardian Ad Litem, T. DANIEL WOMBLE, Plaintiff v. DERRICK MONTRIC FUQUA, HELEN W. NICHOLS, Individually and d/b/a TINY TIM NURSERY AND KINDERGARTEN, CITY OF WINSTON-SALEM, WINSTON-SALEM TENNIS INC., DAVID L. LASH, Defendants WILLIAM L. HICKMAN and wife, ROSLYN R. HICKMAN, Plaintiffs v. DERRICK MONTRIC FUQUA, HELEN W. NICHOLS, Individually and d/b/a TINY TIM NURSERY AND KINDERGARTEN, CITY OF WINSTON-SALEM, WINSTON-SALEM TENNIS INC., DAVID L. LASH, Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nIn this case we are asked to decide whether a city which co-sponsors a free youth tennis program held at a public high school that adjoins a city-owned park enjoys immunity from a negligence suit. Defendant City of Winston-Salem made a motion for summary judgment based upon governmental immunity. The trial court denied this motion, and the City appeals. We reverse.\nThe City of Winston-Salem and Winston-Salem Tennis, Inc., a private nonprofit corporation, have for over twenty years cosponsored the Young Folks Tennis Clinic, a program which provides free tennis lessons for children. The clinics are held at various tennis courts throughout the city. During the summer of 1988, when the actions giving rise to the present lawsuit occurred, the clinics were offered at three locations: Carver High School, South Fork Recreation Center, and Hanes Park. Defendant David L. Lash was the tennis instructor at Carver.\nOn 18 July 1988 plaintiff Andre Hickman, then four years old, was attending the Tiny Tim Nursery and Kindergarten (\u201cTiny Tim\u201d), which is located across and down the street a short distance from the Carver tennis courts. Plaintiff and other children from Tiny Tim were taken that morning to the Carver tennis courts so that they could participate in the Young Folks Tennis Clinic.\nAccording to the complaint, after the lessons that day were completed, no one from Tiny Tim returned to pick up the children. Consequently, plaintiff Hickman and some other children attempted to cross the street to return to Tiny Tim. Plaintiff was struck and injured by a car driven by defendant Fuqua. Plaintiff, by his guardian ad litem, and plaintiffs parents brought negligence actions against Fuqua, the City of Winston-Salem, Winston-Salem Tennis, Inc., Lash, and Helen W. Nichols in her individual capacity and doing business as Tiny Tim Nursery and Kindergarten. The present appeal concerns only the denial of the City of Winston-Salem\u2019s motion for summary judgment made on the grounds of governmental immunity.\nIt is a general rule that the denial of a motion for summary judgment is interlocutory and therefore not immediately appealable. However, recent case law clearly establishes that if immunity is raised as a grounds for the summary judgment motion, a substantial right is affected and the denial is immediately appealable. Herndon v. Barrett, 101 N.C. App. 636, 400 S.E.2d 767 (1991); see also Corum v. University of North Carolina, 330 N.C. 761, 413 S.E.2d 276 (1992) (denial of a motion for summary judgment based on immunity defenses to a 42 U.S.C. \u00a7 1983 action is immediately appealable). The present appeal is properly before this Court.\nThere are two basic immunity questions in the case at bar. First, has Winston-Salem waived its immunity pursuant to N.C.G.S. \u00a7 160A-485(a)(1987) by organizing a corporation, Risk Management Corporation (\u201cRAMCO\u201d), for the purpose of handling liability claims of $1,000,000.00 or less against the City? Secondly, by sponsoring the Young Folks Tennis Clinic is the City acting in its governmental or its proprietary capacity?\nThe North Carolina Supreme Court has recently answered the first question. In Blackwelder v. City of Winston-Salem, 332 N.C. 319, 420 S.E.2d 432 (1992), the Court held that the City of Winston-Salem did not waive its immunity from civil tort liability when it established RAMCO. The Court held that Winston-Salem has neither purchased liability insurance nor participated in a local governmental risk pool. Therefore, under the terms of N.C.G.S. \u00a7 160A-485(a), there is no waiver of immunity.\nOnly the second issue remains. The case law in this field has long given our courts difficulty and has \u201cresulted in irreconcilable splits of authority and confusion as to what functions are governmental and what functions are proprietary.\u201d Koontz v. City of Winston-Salem, 280 N.C. 513, 528, 186 S.E.2d 897, 907 (1972).\nThe general rule is, of course, well established and straightforward: the doctrine of governmental immunity shields a municipality from liability when the municipality performs a governmental function. Governmental immunity does not, however, apply when the municipality engages in a proprietary function.\nOur Supreme Court has described governmental functions as those which are \u201cdiscretionary, political, legislative, or public in nature and performed for the public good in behalf of the State.\u201d Britt v. City of Wilmington, 236 N.C. 446, 450, 73 S.E.2d 289, 293 (1952). By contrast, the proprietary activities undertaken by a municipality are those which are \u201ccommercial or chiefly for the private advantage of the compact community.\u201d Id.\nThe Supreme Court in Britt went further than merely defining the terms, and elucidated a test. \u201cIf the undertaking of the municipality is one in which only a governmental agency could engage, it is governmental in nature. It is proprietary and \u2018private\u2019 when any corporation, individual, or group of individuals could do the same thing.\u201d Id. at 451, 73 S.E.2d at 293.\nOur courts, when applying this test, have focused on the commercial aspect of the definition. Decisions have looked at whether a monetary charge was involved in the activity, or at the amount of revenue the activity generated. However, there appears to be a split of authority over whether the court should consider the money raised solely by the activity, or whether it should consider the money raised by, for example, the entire parks and recreation department of a city. Compare Casey v. Wake County, 45 N.C. App. 522, 263 S.E.2d 360, disc. rev. denied, 300 N.C. 371, 267 S.E.2d 673 (1980) (Court looked only at the pecuniary aspects of the disputed family planning program and not at the entire health department program) with Glenn v. City of Raleigh, 248 N.C. 378, 103 S.E.2d 482 (1958) (Court considered revenue of a single park in connection with the overall budget requirements for operation of the City\u2019s entire recreation program).\nWhile the record indicates that other tennis offerings unrelated to the Young Folks program produce revenue for the City, we find this fact irrelevant to this case. We are persuaded instead by the authority of Casey. In that case, the Court looked only to the costs particular to the individual program in dispute. We find further support for that position in language by the Supreme Court in Rich v. City of Goldsboro, 282 N.C. 383, 192 S.E.2d 824 (1972). There, the Court said: \u201cThis Court has held (Glenn v. Raleigh, 246 N.C. 469) that: \u2018In order to deprive a municipal corporation of the benefit of governmental immunity, the act or function must involve special corporate benefit or pecuniary profit inuring to the municipality.\u2019 \u201d Id. at 386, 192 S.E.2d at 826 (emphasis added).\nIf we consider only the Young Folks Tennis Clinic, we find there to be absolutely no charge involved. We also can find no evidence of revenue generated at Carver\u2019s tennis courts, which are owned by the local School Board, and merely leased by the City. It is irrelevant to our analysis that the tennis courts are adjacent to a public park.\nIn any event, a \u201cprofit motive\u201d is not the sole determinative factor when deciding whether an activity is governmental or proprietary. Sides v. Cabarrus Memorial Hospital, 287 N.C. 14, 23, 213 S.E.2d 297, 303 (1975). Using the Britt test, courts look to see whether an undertaking is one \u201ctraditionally\u201d provided by the local governmental units. Id. at 25, 213 S.E.2d at 304. The creation and operation of public parks and recreation programs are legitimate and traditional functions of the government. See Hare v. Butler, 99 N.C. App. 693, 698, 394 S.E.2d 231, 235, disc. rev. denied, 327 N.C. 634, 399 S.E.2d 121 (1990). Going one step farther, we hold that when a municipality provides free sports instruction as under the facts of this case, it is acting in a governmental capacity.\nOur holding is made even clearer in light of the General Assembly\u2019s pronouncement on the general subject. Our Legislature has declared State policy to be as follows:\nThe lack of adequate recreational programs and facilities is a menace to the morals, happiness, and welfare of the people of this State. Making available recreational opportunities for citizens of all ages is a subject of general interest and concern, and a function requiring appropriate action by both State and local government. The General Assembly therefore declares that the public good and the general welfare of the citizens of this State require adequate recreation programs, that the creation, establishment, and operation of parks and recreation programs is a proper governmental function, and that it is the policy of North Carolina to forever encourage, foster, and provide these facilities and programs for all its citizens.\nN.C.G.S. \u00a7 160A-351 (1987) (emphasis added).\nEach city in the State is expressly given the power and authority to \u201c[establish and conduct a system of supervised recreation.\u201d N.C.G.S. \u00a7 160A-353(1) (1987). \u201cRecreation\u201d is defined by statute as \u201cactivities that are diversionary in character and aid in promoting entertainment, pleasure, relaxation, instruction, and other physical, mental, and cultural development and leisure time experiences.\u201d N.C.G.S. \u00a7 160A-352 (1987).\nThe statute is clear. The City\u2019s sponsorship of the Young Folks Tennis Clinic is a recreational program properly established and conducted through the municipality\u2019s governmental powers. As such, and in the absence of liability insurance, the City is immune from liability for torts arising out of the program.\nWe therefore reverse the trial court\u2019s denial of Winston-Salem\u2019s motion for summary judgment and remand for entry of summary judgment in the City\u2019s favor.\nReversed and remanded.\nChief Judge HEDRICK and Judge WYNN concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Frye and Kasper, by Leslie G. Frye and Granice L. Geyer, for plaintiffs-appellees Andre L. Hickman, William L. Hickman, and Roslyn R. Hickman.", "Womble Carlyle Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr. and Gusti W. Frankel, for defendant-appellant City of Winston-Salem.", "Hendrick, Zotian, Cocklereece & Robinson, by William A. Blancato, for defendant-appellee Winston-Salem Tennis, Inc." ], "corrections": "", "head_matter": "ANDRE L. HICKMAN, a Minor by his Guardian Ad Litem, T. DANIEL WOMBLE, Plaintiff v. DERRICK MONTRIC FUQUA, HELEN W. NICHOLS, Individually and d/b/a TINY TIM NURSERY AND KINDERGARTEN, CITY OF WINSTON-SALEM, WINSTON-SALEM TENNIS INC., DAVID L. LASH, Defendants WILLIAM L. HICKMAN and wife, ROSLYN R. HICKMAN, Plaintiffs v. DERRICK MONTRIC FUQUA, HELEN W. NICHOLS, Individually and d/b/a TINY TIM NURSERY AND KINDERGARTEN, CITY OF WINSTON-SALEM, WINSTON-SALEM TENNIS INC., DAVID L. LASH, Defendants\nNo. 9121SC804\n(Filed 17 November 1992)\nMunicipal Corporations \u00a7 12 (NCI3d) \u2014 governmental immunity \u2014 municipal tennis program \u2014governmental activity\nThe trial court erred by denying defendant City\u2019s motion for summary judgment based on governmental immunity where plaintiff Hickman was injured while crossing the street after attending a free tennis clinic offered by defendant City and a private nonprofit corporation at high school tennis courts adjacent to a public park. The City did not waive its immunity by organizing a corporation to handle liability claims of $1,000,000 or less; although other unrelated tennis offerings produce revenue for the City, there was absolutely no charge involved in this clinic; there is no evidence of revenue generated at the high school courts, which were merely leased by the City; and it is irrelevant that the courts are adjacent to a public park. Moreover, the profit motive is not the sole determinative factor in deciding whether an activity is governmental or proprietary; the City\u2019s sponsorship of this clinic is a recreational program properly established and conducted through the municipality\u2019s governmental powers.\nAm Jur 2d, Municipal, County, School, and State Tort Liability \u00a7\u00a7 87-110.\nComment note \u2014Municipal immunity from liability for torts. 60 ALR2d 1198.\nState\u2019s immunity from tort liability as dependent on governmental or proprietary nature of function. 40 ALR2d 927.\nAPPEAL by defendant City of Winston-Salem from order denying its motion for summary judgment entered 5 June 1991 by Judge Preston Cornelius in FORSYTH County Superior Court. Heard in the Court of Appeals 14 September 1992.\nFrye and Kasper, by Leslie G. Frye and Granice L. Geyer, for plaintiffs-appellees Andre L. Hickman, William L. Hickman, and Roslyn R. Hickman.\nWomble Carlyle Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr. and Gusti W. Frankel, for defendant-appellant City of Winston-Salem.\nHendrick, Zotian, Cocklereece & Robinson, by William A. Blancato, for defendant-appellee Winston-Salem Tennis, Inc." }, "file_name": "0080-01", "first_page_order": 108, "last_page_order": 113 }