Earlier today Judge Elmore filed Court of Appeals case Jennings v. Fayetteville, a wrongful death case arising out of a young man’s death during a heavy rainstorm when he was caught in a drainage ditch and drowned. The City of Fayetteville appealed the trial court’s ruling that it did not have governmental immunity.
Generally explained, governmental immunity exists for what are called “governmental activities” unless the municipality has waived immunity by purchasing liability insurance. However, a municipality is liable for its actions in “proprietary activities.” Governmental activities are those activities (e.g. police, fire) that are conducted almost exclusively by a governmental entity. Proprietary activities are activities that could be conducted by private individuals or entities, such as a fair, waste disposal, etc.
The court’s dilemma was that there have been North Carolina cases declaring both immunity and non-immunity for maintenance of storm drains. The case turned on a previous ruling in a 1996 Court of Appeals case (Kizer v. Sanford) that had not been overturned by the N.C. Supreme Court. The court reasoned that because Kizer was the more recent case and that both Kizer and the current case were heard after the passage of the Clean Water Act, Kizer would stand.
Commentary: The connection between the Clean Water Act, which was passed to manage water quality, and the maintenance of storm drains, which pertains to water quantity, is tenuous at best.