Bowman v. Town of Granite Falls

204 S.E.2d 239 (1974)

21 N.C. App. 333

Jesse O. BOWMAN v. The TOWN OF GRANITE FALLS.

No. 7425DC121.

Court of Appeals of North Carolina.

April 17, 1974.

*240 West & Groome by Ted G. West, Lenoir for plaintiff appellee.

L. H. Wall, Lenoir, and L. M. Abernethy, Granite Falls, for defendant appellant.

CAMPBELL, Judge.

Rule 19 of the Rules of Practice in the North Carolina Court of Appeals specifies that the proceedings of the trial court shall be set forth in the record on appeal in the order of the time in which they occurred, and the processes, orders, and documents in the record on appeal shall follow each other in the order in which they were filed. The record in the case at bar was not properly arranged. Nevertheless, we have decided to reach the merits.

Defendant assigns as error the denial by the trial court of its motion for directed verdict. The stated grounds of the motion were that governmental immunity existed and that plaintiff had failed to show that a hazard existed or that the town knew a hazard existed.

In the absence of a statutory provision to the contrary, a municipality may not ordinarily be held liable for torts committed in the performance of a governmental function. Stone v. City of Fayetteville, 3 N.C.App. 261, 164 S.E.2d 542 (1968). Under G.S. § 160A-296 a municipality may be held liable for negligent or wanton failure to keep its streets in proper repair and in a reasonably safe condition. McClellan v. City of Concord, 16 N.C.App. 136, 191 S.E.2d 430 (1972). However, in the case at bar the tree was not located in the street or in any part of Woodlane Street which the city had accepted. The tree was in the area left by the land developer for street purposes, but that part had not been accepted and was still private property over which the city had no control and to which it owed no duty. See Taylor v. Hertford, 253 N.C. 541, 117 S.E.2d 469 (1960).

Furthermore, notice of the defect, actual or constructive, and a failure *241 to act on the part of the municipality to remedy the situation are prerequisites to recovery in an action involving a municipality. Faw v. North Wilkesboro, 253 N. C. 406, 117 S.E.2d 14 (1960). McClelland v. City of Concord, supra. The plaintiff testified, ". . . I did not say anything to the street committee about the hickory tree being died .... I had several conversations with them but nothing was ever said about the tree. I did not think the tree was as rotten as it was or I would not have parked there...." The record is clear that the defendant had no actual notice that the tree presented a hazard to travel on Woodlane Street. The evidence clearly showed that no one living in the vicinity considered the tree to be a hazard. It would be unreasonable to hold that a municipality must discover a hazard on private property when residents of the immediate area had not done so.

We hold that the trial court erred in failing to grant the defendant's motion for directed verdict.

Reversed.

MORRIS and VAUGHN, JJ., concur.