{
  "id": 8554581,
  "name": "ROBERT B. ROACH and wife, MILDRED LOUISE ROACH v. CITY OF LENOIR",
  "name_abbreviation": "Roach v. City of Lenoir",
  "decision_date": "1980-01-15",
  "docket_number": "No. 7925DC436",
  "first_page": "608",
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  "last_updated": "2023-07-14T22:44:31.887789+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Hedrick and Wells concur."
    ],
    "parties": [
      "ROBERT B. ROACH and wife, MILDRED LOUISE ROACH v. CITY OF LENOIR"
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nDefendant moved to dismiss plaintiffs\u2019 action under G.S. 1A-1, Rule 12(b)(6). The trial court entered its order granting defendant\u2019s motion based upon \u201c. . . the pleadings, citations of law, arguments of counsel and other evidence . . .\u201d Because matters outside the pleadings were considered by the court in reaching its decision, the motion should be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in G.S. 1A-1, Rule 56. Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971).\nHaving converted defendant\u2019s Rule 12(b)(6) motion into a Rule 56 motion for summary judgment, the question on appeal is whether there is a genuine issue as to any material fact. Fowler v. Williamson, 39 N.C. App. 715, 251 S.E. 2d 889 (1979). The trial court in its order refers to \u201cother evidence\u201d outside of the allegations in the complaint which it considered in determining that there was no genuine issue of material fact and that as a matter of law:\n(3) The Defendant, City of Lenoir, had not waived said governmental immunity pursuant to N.C.G.S. 160A-485.\nThe record on appeal, however, does not contain any of the evidence relied upon by the trial court in support of its conclusion. The record on appeal contains only the bare complaint and no other pleading, deposition, affidavit or testimony. Furthermore, the complaint makes no mention of whether governmental immunity exists or is waived.\nWe do not intimate that in the form the controversy took in the District Court that the court lacked justification for its conclusion. Nevertheless, because of the inadequacy of the record to decide the factual and legal issues involved in governmental immunity, this Court is unable to determine whether there is any genuine issue of material fact and whether summary judgment was properly granted on the evidence before the trial court. See Kennedy v. Silas Mason Co., 334 U.S. 249, 92 L.Ed. 1347, 68 S.Ct. 1031 (1948).\nHad it been evident from the record that there was no waiver of governmental immunity by defendant, then it is clear plaintiffs could not prevail on their claim for the following reasons.\nThe establishment and construction of a sewer system by a municipality are governmental functions entitling it to immunity from negligence. Metz v. Asheville, 150 N.C. 748, 64 S.E. 881 (1909). Plaintiffs concede in their brief that \u201c. . . the maintenance of a public sewerage system is a governmental function,\u201d citing Metz v. Asheville, supra. Plaintiffs argue that even if the doctrine of governmental immunity is applicable, property damages are recoverable, relying on Rhyne v. Mount Holly, 251 N.C. 521, 112 S.E. 2d 40 (1960). We do not agree. The case sub judice is distinguishable since plaintiffs neither allege facts sufficient to support a nuisance claim nor is their claim based on a theory of nuisance. Thus, the City of Lenoir, while performing a governmental function in the maintenance of a sewer system within its municipal jurisdiction, may not be held liable for any damage arising out of the governmental activity unless it expressly waives its immunity pursuant to N.C. Gen. Stat. \u00a7 160A-485.\nAs stated above, because of the inadequacy of the record, the Court is unable to review the grant of summary judgment on the issue of waiver. Hence we vacate the judgment below and remand the case to the district court for amplification of the record in light of this opinion.\nReversed and remanded.\nJudges Hedrick and Wells concur.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      }
    ],
    "attorneys": [
      "Mitchell, Telle, Blackwell & Mitchell, by Marcus W. H. Mitchell, Jr., for the plaintiff.",
      "Carpenter & Bost, by J. Bradley Wilson, for the defendant."
    ],
    "corrections": "",
    "head_matter": "ROBERT B. ROACH and wife, MILDRED LOUISE ROACH v. CITY OF LENOIR\nNo. 7925DC436\n(Filed 15 January 1980)\n1. Rules of Civil Procedure \u00a7 56\u2014 motion for judgment on pleadings \u2014 consideration of outside evidence \u2014 treatment as summary judgment motion\nA motion to dismiss under G.S. 1A-1, Rule 12(b)(6) should be treated as a motion for summary judgment under G.S. 1A-1, Rule 56 where the court considers matters outside the pleadings.\n2. Municipal Corporations \u00a7 21\u2014 maintenance of sewer system \u2014 governmental immunity\nA municipality\u2019s maintenance of a public sewer system is a governmental function, and the municipality is not liable for damages resulting from negligence in the maintenance of its sewer system unless it has expressly waived its immunity pursuant to G.S. 160A-485.\n3. Municipal Corporations \u00a7 21\u2014 maintenance of sewer system \u2014 waiver of governmental immunity \u2014 inadequacy of record\nIn this action to recover damages allegedly resulting from defendant municipality\u2019s negligence in the maintenance of its sewer system, the entry of summary judgment for defendant on the ground it had not waived its governmental immunity is reversed and the cause is remanded where the record is inadequate to permit a determination as to whether defendant has waived its immunity.\nAPPEAL by plaintiffs from Crotty, Judge. Order entered 26 March 1979 in District Court, CALDWELL County. Heard in the Court of Appeals 6 December 1979.\nPlaintiffs filed complaint on 15 November 1978 alleging that defendant was a municipal corporation which owned and maintained a sewer system, that they owned and maintained a residence within defendant\u2019s boundaries which was connected to defendant\u2019s sewer system, and that on 17 June 1977 \u201csewage from Defendant\u2019s sewage system backed up through the connecting sewer pipe and into the home of the Plaintiffs, destroying and damaging personal property of the Plaintiffs and rendering the home unfit for habitation.\u201d Plaintiffs further alleged that defendant had been \u201ccareless and negligent in the operation of its sewer system\u201d in that it had permitted the sewer line to become clogged, it had permitted other users to clog the lines, and had failed to make reasonable inspection of the lines. Plaintiffs alleged that the defendant had had knowledge of the clogged line \u201cbut negligently and carelessly failed to correct it.\u201d Plaintiffs charged that defendant\u2019s \u201ccareless and wrongful acts\u201d had caused their damage, that defendant had received and rejected their claim for damages, and that they should recover $3,500 damages from defendant.\nDefendant moved to dismiss the complaint for failure to state a claim.\nA hearing was held and an order was entered allowing the motion to dismiss. The judge found that the defendant had been performing a govermental function in the maintenance of the sewer system, that defendant therefore had governmental immunity against plaintiffs\u2019 claims, and that defendant had not waived its immunity. Plaintiffs appealed.\nMitchell, Telle, Blackwell & Mitchell, by Marcus W. H. Mitchell, Jr., for the plaintiff.\nCarpenter & Bost, by J. Bradley Wilson, for the defendant."
  },
  "file_name": "0608-01",
  "first_page_order": 636,
  "last_page_order": 639
}
