Robinson v. Nash County

257 S.E.2d 679 (1979)

Robert W. ROBINSON, Ancillary Administrator of Lynsta C. Robinson, Deceased v. NASH COUNTY and Margaret B. Doughtie, Individually and as Register of Deeds.

No. 787SC1088.

Court of Appeals of North Carolina.

September 18, 1979.

*680 Everett, Everett, Creech & Craven by Robinson O. Everett, Durham, for plaintiff-appellant.

Keel & Duffy by James W. Keel, Jr., Rocky Mount, for defendant-appellee Nash County.

Battle, Winslow, Scott & Wiley by J. B. Scott, Rocky Mount, for defendant-appellee Margaret B. Doughtie.

HEDRICK, Judge.

By assignment of error number one, plaintiff contends that the defendant Nash County was liable in tort for the wrongful death of plaintiff's 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's 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. § 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.

It is well established in this State that counties or municipal corporations have no governmental immunity for activities that are "proprietary" 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, "[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." 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).

In Sides v. Cabarrus Memorial Hospital, Inc., supra, our Supreme Court extensively reviewed its prior decisions on the proprietary-governmental distinction and noted that "all 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." 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:

When 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, *681 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.

Metz 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).

We are persuaded that the function of the office of a register of deeds is primarily and directly for the "common good", McCombs v. City of Asheboro, 6 N.C. App. at 241, 170 S.E.2d at 174, that it serves a "public purpose", Metz v. City of Asheville, supra, and that the operation thereof is one of the "traditional" 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 "the modern tendency [is] to restrict rather than to extend the application of governmental immunity", 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's motion for summary judgment.

By 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's 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 "the allegations in the present complaint are directed to ministerial acts . . . rather than to any act involving the exercise of discretion." The complaint further alleges that these acts on the part of defendant Doughtie constituted negligence and consisted of the following:

(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; (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; (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; (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; (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.

Plaintiff's 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 "yes." 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: "Having reached the conclusion that the service rendered was a governmental function, it follows that the governmental agency and its *682 officers are protected against . . . tort liability." [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.

Whether the acts performed by the public official be characterized as "governmental" duties, Wilkins v. Burton, 220 N.C. 13, 16 S.E.2d 406 (1941), "discretionary" acts, Nelson v. Comer, 21 N.C.App. 636, 205 S.E.2d 537 (1974), or "ministerial" acts, Langley v. Taylor, 245 N.C. 59, 95 S.E.2d 115 (1956), the public official is immune from individual liability "where the duties are of a public nature, imposed entirely for the public benefit . . . ." 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 "of a public nature," Hipp v. Ferrall, supra, imposed by statute, see N.C. General Statutes, Chapter 161, and carried out in the performance of a governmental duty.

Thus, the trial court correctly entered summary judgment for the defendant.

Affirmed.

VAUGHN and ARNOLD, JJ., concur.