JOAN A. MEINCK, Plaintiff,
CITY OF GASTONIA, a North Carolina Municipal Corporation, Defendant.
in the Court of Appeals 22 February 2017
by plaintiff from order entered 1 June 2016 by Judge Lisa
Bell in Gaston County No. 15 CVS 423 Superior Court.
Office of Thomas D. Bumgardner, PLLC, by Thomas D.
Bumgardner, for plaintiff-appellant.
Hollowell, Palmer & Windham, L.L.P., by Martha Raymond
Thompson and Ryan L. Bostic for defendant-appellee.
Meinck ("Plaintiff") appeals from an order granting
summary judgment in favor of the City of Gastonia
("Defendant"). We reverse and remand.
owns a commercial building located at 212 West Main Avenue in
Gastonia, North Carolina. The building is located within a
downtown revitalization district established by Defendant in
a 1999 city resolution. Defendant did not use the building to
house any municipal or government departments or offices.
in 2013, Defendant leased the building to the Gaston County
Art Guild ("Art Guild"), a private non-profit
entity unaffiliated with either Defendant or Gaston County.
Defendant leased the building as an effort to fill a vacancy
and help remove a blight from vacant buildings on the
downtown area. Defendant's evidence tends to show
Defendant did not seek to make a profit from the lease.
Defendant retained the responsibility for maintaining the
exterior of the premises and the right to inspect the
building at any time.
lease agreement between Defendant and the Art Guild limited
the Art Guild's uses of 212 West Main Avenue to an
"art gallery and artists' studios and a gift
shop." The lease agreement provided for four separate
means of compensation to Defendant. The first method required
the Art Guild to pay Defendant 90% of all rent money it
received from subtenants. The second method guaranteed
Defendant 30% of the gross sales receipts received for art
the Art Guild sold on the premises. The third method required
subtenants of the Art Guild to disgorge 15% of their gross
sales receipts to Defendant. The fourth method required
subtenants to provide a minimum of fifteen hours of volunteer
time each month working on tending to the gallery and the
gift shop. In addition to the minimum required volunteer
time, subtenants were also tasked to arrange sales shows,
serve on committees, or help manage other subtenants.
subleased space in 212 West Main Avenue contained enough room
for nineteen private art studios for subtenants. Plaintiff
was one of the subtenants of the Art Guild. Plaintiff paid
$95.00 per month to rent space inside 212 West Main Avenue,
90% of which was paid to Defendant.
2013 fiscal year, Defendant expended $33, 062.01 on 212 West
Main Avenue and received revenues of $21, 572.98 from the Art
Guild's lease, a loss of $11, 489.03. For the 2014 fiscal
year, Defendant expended $40, 008.13 and received revenues of
$21, 935.57, a loss of $18, 072.56.
December 2013, Plaintiff left through the rear exit of 212
West Main Avenue, and she carried several large pictures,
lost her balance on a set of steps, and fell. As a result of
her fall, Plaintiff suffered a broken hip, required
hospitalization, and incurred medical expenses. Portions of
the cement on the steps had apparently eroded. As a result of
carrying large pictures, Plaintiff was prevented from seeing
where she was stepping.
February 2015, Plaintiff filed a complaint and alleged
Defendant had negligently failed to maintain the exit of the
building or to warn of the dangerous condition of the exit.
On 12 January 2016, Defendant filed a motion for summary
judgment asserting governmental immunity as an affirmative
defense. The trial court granted Defendant's motion on
that basis. Plaintiff appeals.
Statement of Jurisdiction
lies in this Court pursuant to N.C. Gen. Stat. §
7A-27(b)(1), which provides for an appeal of right from any
final judgment of a superior court. N.C. Gen. Stat. §