{
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  "name": "ROBERT W. ROBINSON, Ancillary Administrator of LYNSTA C. ROBINSON, Deceased v. NASH COUNTY and MARGARET B. DOUGHTIE, Individually and as Register of Deeds",
  "name_abbreviation": "Robinson v. Nash County",
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    "judges": [
      "Judges Vaughn and Arnold concur."
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    "parties": [
      "ROBERT W. ROBINSON, Ancillary Administrator of LYNSTA C. ROBINSON, Deceased v. NASH COUNTY and MARGARET B. DOUGHTIE, Individually and as Register of Deeds"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nBy assignment of error number one, plaintiff contends that the defendant Nash County was liable in tort for the wrongful death of plaintiff\u2019s intestate which resulted from a hazardous condition in the office of the Register of Deeds. In support of its motion for summary judgment, defendant Nash County submitted the affidavit of L. R. Holoman, Jr., the Nash County Manager, who is in charge of procuring insurance at the direction of the Nash County Board of Commissioners. The affiant stated that Nash County had not procured any liability insurance for any negligent act or omission of the County or any of its officers, agents, or employees. The plaintiff has not contested the affiant\u2019s statement, and thus no question is raised as to whether the County has waived its governmental immunity by purchasing liability insurance, as it is empowered to do by G.S. \u00a7 153A-435. Indeed, the record affirmatively establishes that the County has not purchased such insurance. The sole question presented by this assignment of error, therefore, is whether the defense of governmental immunity is available to the defendant Nash County.\nIt is well established in this State that counties or municipal corporations have no governmental immunity for activities that are \u201cproprietary\u201d in nature. Bowling v. City of Oxford, 267 N.C. 552, 148 S.E. 2d 624 (1966); Aaser v. City of Charlotte, 265 N.C. 494, 144 S.E. 2d 610 (1965). But, it is equally well settled that, \u201c[w]hen the activity of a governmental entity is clearly governmental in nature, and not proprietary, the rule of sovereign immunity will protect the government from suit.\u201d Vaughn v. County of Durham, 34 N.C. App. 416, 418, 240 S.E. 2d 456, 458 (1977), cert. denied, 294 N.C. 188, 241 S.E. 2d 522 (1978). See also Sides v. Cabarrus Memorial Hospital, Inc., 287 N.C. 14, 213 S.E. 2d 297 (1975); Clark v. Scheld, 253 N.C. 732, 117 S.E. 2d 838 (1961); Moffitt v. City of Asheville, 103 N.C. 237, 9 S.E. 695 (1889).\nIn Sides v. Cabarrus Memorial Hospital, Inc., supra, our Supreme Court extensively reviewed its prior decisions on the proprietary-governmental distinction and noted that \u201call of the activities held to be governmental functions by this Court are those historically performed by the government, and which are not ordinarily engaged in by private corporations.\u201d Id. at 23, 213 S.E. 2d at 303. While the line between governmental and proprietary operations is sometimes a difficult one to draw, the distinction has been stated thusly:\nWhen power conferred has relation to public purposes and for the public good, it is to be classified as governmental in its nature. . . . But when it relates to the accomplishment of private purposes in which the public is only indirectly concerned, it is private in its nature, and the municipality, in respect to its exercise, is regarded as a legal individual. In the former case the corporation is exempt from all liability . . .; while in the latter case it may be held to that degree of responsibility which would attach to an ordinary corporation.\nMetz v. City of Asheville, 150 N.C. 748, 750, 64 S.E. 881, 882 (1909). See also McCombs v. City of Asheboro, 6 N.C. App. 234, 170 S.E. 2d 169 (1969); Stone v. City of Fayetteville, 3 N.C. App. 261, 164 S.E. 2d 542 (1968).\nWe are persuaded that the function of the office of a register of deeds is primarily and directly for the \u201ccommon good\u201d, McCombs v. City of Asheboro, 6 N.C. App. at 241, 170 S.E. 2d at 174, that it serves a \u201cpublic purpose\u201d, Metz v. City of Asheville, supra, and that the operation thereof is one of the \u201ctraditional\u201d services rendered by local government, Sides v. Cabarrus Memorial Hospital, Inc., 287 N.C. at 25, 213 S.E. 2d at 304. While we recognize that \u201cthe modern tendency [is] to restrict rather than to extend the application of governmental immunity\u201d, Koontz v. City of Winston-Salem, 280 N.C. 513, 529, 186 S.E. 2d 897, 908 (1972), we are of the opinion that the operation and maintenance of a register of deeds office in a county courthouse is clearly a governmental function for which the county enjoys immunity from suit for negligence. Thus, we hold that the trial judge properly granted the defendant Nash County\u2019s motion for summary judgment.\nBy his remaining assignment of error, plaintiff contends that the defendant, Margaret Doughtie, the Register of Deeds of Nash County, was subject to personal liability for the wrongful death of plaintiff\u2019s mother. Plaintiff argues that even if the defense of governmental immunity is available to the defendant county, the defendant Doughtie is not entitled to the shelter of this defense because \u201cthe allegations in the present complaint are directed to ministerial acts . . . rather than to any act involving the exercise of discretion.\u201d The complaint further alleges that these acts on the part of defendant Doughtie constituted negligence and consisted of the following:\n(a) Her removing, or allowing to be removed, the gate, barrier, or other obstruction located at the head of the steep stairway in the office of the Register of Deeds, over which office she had control and responsibility in the course of her official duties;\n(b) Her failure to replace promptly the gate, barrier or other, obstruction at the head of the steep stairway leading down from the portion of the Office of the Register of Deeds into a basement or lower area;\n(c) Her placement of books, maintained in the performance of her official duties, on shelves near the top of the open stairway and with only a narrow clearance from the top of the open stairway where it was foreseeable that invitees and licensees would be unreasonably exposed to the hazard of a fall down the open stairway;\n(d) Her failure to rectify the hazardous condition that had been created prior to July 20, 1976, despite complaints she had received concerning the hazard and the danger of injury to invitees and licensees using the office;\n(e) Her failure to give any sort of warning to persons lawfully using the office of the Register of Deeds, as was deceased, concerning the hazard created by the open stairway.\nPlaintiff\u2019s argument misses the point. With respect to the actions of defendant Doughtie in her official capacity, the question before this Court is not one of negligence, but rather one of immunity. That is, is this individual public officer protected from tort liability by governmental immunity to the same extent as the defendant Nash County when she undertakes the performance of her official governmental duties? The answer must be \u201cyes.\u201d In Seibold v. Kinston-Lenoir County Public Library, 264 N.C. 360, 361, 141 S.E. 2d 519, 520 (1965) (per curiam), it is said: \u201cHaving reached the conclusion that the service rendered was a governmental function, it follows that the governmental agency and its officers are protected against . . . tort liability.\u201d [Emphasis added.] The Court held in Seibold that the operation of a public library is a governmental function. Thus, both the County and the officials responsible for the operation of the library were exempt from tort liability for personal injuries which allegedly resulted from negligence in the maintenance of the library. Id. The question of negligence was not reached by the Court.\nWhether the acts performed by the public official be characterized as \u201cgovernmental\u201d duties, Wilkins v. Burton, 220 N.C. 13, 16 S.E. 2d 406 (1941), \u201cdiscretionary\u201d acts, Nelson v. Comer, 21 N.C. App. 636, 205 S.E. 2d 537 (1974), or \u201cministerial\u201d acts, Langley v. Taylor, 245 N.C. 59, 95 S.E. 2d 115 (1956), the public official is immune from individual liability \u201cwhere the duties are of a public nature, imposed entirely for the public benefit. . . .\u201d Hipp v. Ferrall, 173 N.C. 167, 169, 91 S.E. 831, 832 (1917). See also Langley v. Taylor, supra; Hudson v. McArthur, 152 N.C. 445, 67 S.E. 995 (1910). In the present case the record establishes that the allegedly negligent acts attributed to the defendant Doughtie were clearly \u201cof a public nature,\u201d Hipp v. Ferrall, supra, imposed by statute, see N.C. General Statutes, Chapter 161, and carried out in the performance of a governmental duty.\nThus, the trial court correctly entered summary judgment for the defendant.\nAffirmed.\nJudges Vaughn and Arnold concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Everett, Everett, Creech & Craven, by Robinson 0. Everett, for plaintiff appellant.",
      "Keel & Duffy, by James W. Keel, Jr., for defendant appellee Nash County.",
      "Battle, Winslow, Scott & Wiley, by J. B. Scott, for defendant appellee Margaret B. Doughtie."
    ],
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    "head_matter": "ROBERT W. ROBINSON, Ancillary Administrator of LYNSTA C. ROBINSON, Deceased v. NASH COUNTY and MARGARET B. DOUGHTIE, Individually and as Register of Deeds\nNo. 787SC1088\n(Filed 18 September 1979)\n1. Counties \u00a7 9; Registers of Deeds \u00a7 1\u2014 operation of register of deeds office \u2014 immunity of county from suit for negligence\nThe operation and maintenance of a register of deeds office in a county courthouse is a governmental function for which the county enjoys immunity from suit for negligence.\n2. Counties \u00a7 9; Registers of Deeds \u00a7 1\u2014 operation of register of deeds office-immunity of register of deeds from suit for negligence\nA register of deeds is protected from tort liability by governmental immunity to the same extent as the county when he or she undertakes the performance of his or her official governmental duties. Therefore, a register of deeds was not subject to personal liability for the death of a person who was killed in a fall down a stairway in the register of deeds office while using records kept in that office.\nAPPEAL by plaintiff from Brown, Judge. Judgment entered on 30 August 1978 in Superior Court, NASH County. Heard in the Court of Appeals on 28 August 1979.\nThis is a civil action wherein plaintiff seeks to recover in excess of $200,000 for the wrongful death of his mother Lynsta C. Robinson, who fell down a stairway located in the Nash County Courthouse while looking at various records kept in the Register of Deeds Office. In his complaint, plaintiff alleged \u201cthat the injuries and death of the deceased were proximately and directly caused by the joint and concurrent negligence of the Defendant [Nash] County and the defendant [Margaret] Doughtie acting in her capacity as Register of Deeds.\u201d The alleged negligence of the Register of Deeds and of officers, employees, and agents of Nash County consisted of the \u201cremoving, or allowing to be removed, [a] gate, barrier, or other obstruction located at the head of the steep stairway in the office of the Register of Deeds\u201d; the placement of books on shelves near the top of the \u201copen stairway . . . where it was foreseeable that invitees and licensees would be unreasonably exposed to the hazard of a fall down the open stairway\u201d; and the failure to warn of the hazard. Defendant Nash County filed an answer denying the material allegations of the complaint and further alleging as an affirmative defense that it had \u201cnot insured itself or its officers, agents or employees against liability pursuant to G.S. \u00a7 153A-435\u201d; that it was \u201cperforming a governmental function\u201d; and that it is therefore immune from any liability. Defendant Margaret Doughtie answered denying the material allegations of the complaint and argued further that any alleged negligence on her part related to actions taken by her \u201cin her capacity as a public official, engaged in the performance of governmental duties involving the exercise of judgment and discretion, and in this situation, she may not be held personally liable for mere negligence in respect thereto.\u201d\nBoth defendants moved for summary judgment and filed affidavits in support of their motions. Subsequently, the plaintiff filed affidavits in opposition to the motion. On 30 August 1978, the trial court entered Orders granting the defendants\u2019 motions for summary judgments. Plaintiff appealed.\nEverett, Everett, Creech & Craven, by Robinson 0. Everett, for plaintiff appellant.\nKeel & Duffy, by James W. Keel, Jr., for defendant appellee Nash County.\nBattle, Winslow, Scott & Wiley, by J. B. Scott, for defendant appellee Margaret B. Doughtie."
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