Estate Of Williams v. Pasquotank County Parks & Recreation

732 S.E.2d 137 (2012)

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Nature of the Case

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Facts

P drowned at a public park. The park, Fun Junktion, was owned, maintained and operated by D. P's estate filed a claim against Ds alleging that, as a result of Ds' negligence, P drowned in the 'Swimming Hole,' an area rented out to private parties at Fun Junktion. D denied any negligence and put forth the affirmative defenses of governmental immunity, sovereign immunity, and contributory negligence. Ds made a limited motion for summary judgment, contending that P's allegations were barred by the doctrines of governmental and sovereign immunity. The trial court denied the motion. It held that Ds were not entitled to governmental immunity because 'Ds charged and collected a fee' 'for the use of the Fun Junktion park, and Ds were providing the same type of facilities and services that private individuals or corporations could provide.' D appealed. A unanimous panel of the Court of Appeals affirmed. It held that governmental immunity applies to counties and municipalities acting in the performance of governmental, rather than proprietary, functions. The Court of Appeals articulated a four-factor test considering: (1) whether an undertaking is one traditionally provided by local governments; (2) if the undertaking is one in which only a governmental agency could engage, or if any corporation, individual, or group of individuals could do the same thing; (3) whether the governmental unit charged a substantial fee; and (4) if a fee was charged, whether a profit was made. It described the second factor-whether nongovernmental actors could perform the same function provided by the county or municipality-as the 'most important.' It then concluded that: (1) public parks have traditionally been provided by local government; (2) public parks could be provided by private, as well as public, entities; (3) Ds charged a fee ($75.00) for the use of Fun Junktion, though (4) Ds did not make a profit as a result of charging this or other rental fees for Fun Junktion. It affirmed. Ds appealed.