{ "id": 4169297, "name": "JESSE JENNINGS, III & LINDA G. KING as Personal Representatives of the ESTATE OF JESSE MARQUIL KING, DECEASED, Plaintiffs v. THE CITY OF FAYETTEVILLE, NORTH CAROLINA, A Body Politic and Municipal Corporation, Defendant", "name_abbreviation": "Jennings v. City of Fayetteville", "decision_date": "2009-08-04", "docket_number": "No. COA09-92", "first_page": "698", "last_page": "701", "citations": [ { "type": "official", "cite": "198 N.C. App. 698" } ], "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": "121 N.C. App. 526", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918499 ], "year": 1996, "opinion_index": -1, "case_paths": [ "/nc-app/121/0526-01" ] }, { "cite": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "year": 2007, "pin_cites": [ { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-214.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "164 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 261", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554556 ], "year": 1968, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0261-01" ] }, { "cite": "466 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "338", "parenthetical": "\"[S]torm drain maintenance does not enjoy governmental immunity.\"" }, { "page": "338" } ], "opinion_index": 0 }, { "cite": "140 S.E. 71", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1927, "pin_cites": [ { "page": "75" } ], "opinion_index": 0 }, { "cite": "194 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611392 ], "year": 1927, "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/nc/194/0450-01" ] }, { "cite": "155 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "parenthetical": "\"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.\"" } ], "opinion_index": 0 }, { "cite": "271 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563326 ], "year": 1967, "pin_cites": [ { "parenthetical": "\"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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0224-01" ] }, { "cite": "151 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "268 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563593 ], "year": 1966, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0535-01" ] }, { "cite": "602 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "670" } ], "opinion_index": 0 }, { "cite": "359 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798216 ], "year": 2004, "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0050-01" ] }, { "cite": "492 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "386" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799017 ], "year": 1997, "pin_cites": [ { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0599-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "year": 2007, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] }, { "cite": "544 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "264" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443380 ], "year": 2001, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0688-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-277", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "121 N.C. App. 526", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918499 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "528", "parenthetical": "\"[S]torm drain maintenance does not enjoy governmental immunity.\"" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0526-01" ] } ], "analysis": { "cardinality": 531, "char_count": 9044, "ocr_confidence": 0.734, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13641992255146923 }, "sha256": "2269e96cd28ae1d5bfb32170a4285ee274239bcac29590e46458b0d6aaf7d72b", "simhash": "1:292b5eb0578ef2e5", "word_count": 1447 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and CALABRIA concur." ], "parties": [ "JESSE JENNINGS, III & LINDA G. KING as Personal Representatives of the ESTATE OF JESSE MARQUIL KING, DECEASED, Plaintiffs v. THE CITY OF FAYETTEVILLE, NORTH CAROLINA, A Body Politic and Municipal Corporation, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nThis 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. The personal representatives of decedent\u2019s estate (plaintiffs) filed suit against defendant in Cumberland County. The trial court denied defendant\u2019s motion requesting governmental immunity from liability resulting from the operation of a storm drain system. Defendant filed an interlocutory appeal to this Court. We affirm the trial court\u2019s order.\nFACTS\nOn 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.\nPlaintiffs filed suit on 7 August 2007, seeking damages for wrongful death as a result of defendant\u2019s 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\u2019s 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\u2019s order.\nARGUMENT\nDefendant argues that the trial court erred by denying the motion for summary judgment on the issue of defendant\u2019s governmental immunity. We disagree.\nAn appeal from an order denying a motion for summary judgment is interlocutory because the order \u201cdoes not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Interlocutory appeals are immediately appealable only when they affect a substantial right of the parties. N.C. Gen. Stat. \u00a7 1-277(a) (2007). 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).\nWe review a trial court\u2019s 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 \u201cthe 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56 (c) (2007).\n\u201c[M]unicipalities in North Carolina are immune from liability for their negligent acts arising out of governmental activities unless the municipality waives such immunity by purchasing liability insurance.\u201d 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).\nDefendant 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\u2019g, 271 N.C. 224, 155 S.E.2d 543 (1967) (\u201cThe 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.\u201d); Gore v. City of Wilmington, 194 N.C. 450, 458, 140 S.E. 71, 75 (1927) (\u201cUnder 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.\u201d). 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) (\u201c[S]torm drain maintenance does not enjoy governmental immunity.\u201d); but see Stone v. City of Fayetteville, 3 N.C. App. 261, 264, 164 S.E.2d 542, 545 (1968) (\u201c[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 a municipal corporation from liability for personal injury or death arising from the maintenance of a ditch used for drainage and sewerage.\u201d).\nDefendant urges this Court to reconsider the issue of municipality liability for storm drain maintenance in light of this State\u2019s passage of storm water regulations in response to the federal Clean Water Act. See N.C. Gen. Stat. \u00a7 143-214.7(c) (2007) (\u201cThe [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.\u201d). 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\u2019s passage, this Court held that \u201cstorm drain maintenance does not enjoy governmental immunity\u201d and affirmed the trial court\u2019s denial of a municipal defendant\u2019s motion for summary judgment based on governmental immunity. Kizer, 121 N.C. App. at 528, 466 S.E.2d at 338. 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.\n\u201cWhere one panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d 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\u2019s 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.\nFor the reasons stated above, defendant\u2019s argument is overruled, and we affirm the trial court\u2019s order denying summary judgment to defendants on the matter of governmental immunity.\nAffirmed.\nJudges BRYANT and CALABRIA concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "JESSE JENNINGS, III & LINDA G. KING as Personal Representatives of the ESTATE OF JESSE MARQUIL KING, DECEASED, Plaintiffs v. THE CITY OF FAYETTEVILLE, NORTH CAROLINA, A Body Politic and Municipal Corporation, Defendant\nNo. COA09-92\n(Filed 4 August 2009)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 immunity \u2014 substantial right\nAlthough the appeal from an order denying a motion for summary judgment is from an interlocutory order, claims of immunity affect a substantial right and are immediately appealable.\n2. Cities and Towns; Immunity\u2014 municipality\u2019s liability for negligence in storm drain maintenance\nThe trial court did not err in a wrongful death case arising out of defendant city\u2019s negligence in maintaining a storm drain system by denying defendant city\u2019s motion for summary judgment based on governmental immunity because: (1) our Supreme Court has stated that a municipality may be held liable for negligence in storm drain maintenance; and (2) although defendant urges the Court of Appeals to reconsider the issue of municipality liability for storm drain maintenance in light of the State\u2019s passage of storm water regulations in response to the federal Clean Water Act, another panel of the Court of Appeals has already decided this issue in Kizer, 121 N.C. App. 526 (1996), and a subsequent panel is bound by that precedent- since it has not been overturned by a higher court.\nAppeal 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.\nMitchell Brewer Richardson, by Ronnie M. Mitchell and Coy E. Brewer, Jr., for plaintiff.\nLewis, Deese & Nance, LLP, by James R. Nance, Jr., and Karen M. McDonald, for defendant." }, "file_name": "0698-01", "first_page_order": 724, "last_page_order": 727 }