Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Meinck v. City of Gastonia

Court of Appeals of North Carolina

January 2, 2019

JOAN A. MEINCK, Plaintiff,
v.
CITY OF GASTONIA, a North Carolina Municipal Corporation, Defendant.

          Originally heard in the Court of Appeals 22 February 2017.

          Appeal by plaintiff from order entered 1 June 2016 by Judge Lisa Bell in Gaston County No. 15 CVS 423 Superior Court. Meinck v. City of Gastonia, ___ N.C. App. ____, 798 S.E.2d 417 (2017). Upon remand from the Supreme Court of North Carolina by opinion issued 26 October 2018.Meinck v. City of Gastonia, ____ N.C. ___, 819 S.E.2d 353 (2018).

          Law Office of Thomas D. Bumgardner, PLLC, by Thomas D. Bumgardner, for plaintiff-appellant.

          Stott, Hollowell, Palmer & Windham, L.L.P., by Martha Raymond Thompson and Ryan L. Bostic for defendant-appellee.

          TYSON, JUDGE.

         This case returns to this Court upon remand by the opinion of our Supreme Court. As stated in the Supreme Court's opinion:

Because the Court of Appeals determined that defendant was not entitled to governmental immunity, it did not address whether the trial court correctly ruled that defendant did not waive governmental immunity by purchasing liability insurance. We remand this case to the

         Opinion of the Court

         Court of Appeals to address that issue.

         Meinck, ___ N.C. at ___, 819 S.E.2d at 367. Pursuant to the Supreme Court's instructions, we review whether the City of Gastonia (the "City" or "Defendant") waived governmental immunity by the purchase of insurance. We reverse the trial court's ruling and remand for further proceedings.

         I. Background

         The facts underlying this case are set forth in detail in our previous opinion and the Supreme Court's subsequent opinion. Meinck v. City of Gastonia, ___ N.C.App. ___, 798 S.E.2d 417 (2017), rev'd in part, disc. review improvidently allowed in part, and remanded, __ N.C. __, 819 S.E.2d 353 (2018). We briefly summarize below.

         The City is a local body politic, chartered as a public municipal corporation by the General Assembly in 1877. Public Laws 1876-77, c. 52, § 1. The City and surrounding Gaston County are named for the Honorable William Joseph Gaston, a former Justice of the Supreme Court of North Carolina, who also served as a United States Congressman. Justice Gaston is also the author of the official North Carolina state song: "The Old North State". Public Laws, 1927, c. 26; N.C. Gen. Stat. § 149-1 (2017).

         The City acquired and owns an historic commercial building located at 212 West Main Avenue in Gastonia. In 2013, Defendant leased the building to the Gaston County Art Guild ("the Art Guild"), which is a private not-for-profit entity. As owner, Defendant remained responsible under the lease for maintaining the exterior of the premises and the right to inspect the building at any time.

         The Art Guild utilized and subleased the building to attract artists' studios, and for use as an art gallery and gift shop. The lease agreement provided the Art Guild was empowered to sublease portions of the building to subtenants to use as art studios. Joan Meinck ("Plaintiff") was one such artist and a subtenant.

         On 11 December 2013, Plaintiff was leaving through the rear exterior exit of the subject building while carrying several large picture. She lost her balance while 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 allegedly cracked and eroded. The large pictures she was carrying may have prevented her from seeing where she was stepping.

         On 4 February 2015, Plaintiff filed a complaint alleging Defendant had negligently failed to maintain the exit stairs of the building or to warn her of the dangerous condition of the steps and stairs. Plaintiff's complaint alleged Defendant had waived governmental immunity by purchasing liability insurance and also alleged Defendant's tortious conduct, while Defendant was engaged in a proprietary function, rather than a governmental function, deprived Defendant of governmental immunity.

         On 12 January 2016, Defendant filed a motion for summary judgment asserting that the City was entitled to governmental immunity, that Defendant was not negligent as a matter of law, and that Plaintiff was contributorily negligent as a matter of law. The trial court determined that Defendant's liability insurance policy "contained an express non-waiver provision" and that Defendant had not waived governmental immunity. The trial court also determined Defendant was engaged in a governmental function, was entitled to governmental immunity, and granted summary judgment to Defendant on that basis. Plaintiff appealed to this Court.

         In this Court's unanimous prior opinion, we held Defendant was engaged in a proprietary function and, as such, was not entitled to governmental immunity. Meinck, __ N.C.App. at __, 798 S.E.2d at 424. We also held Defendant was not entitled to summary judgment on the issue of Plaintiff's contributory negligence. Id. Because we concluded Defendant was engaged in a proprietary function, we did not further address Plaintiff's argument that the City's non-waiver provision in its liability insurance contract did not preserve the City's sovereign or governmental immunity.

         Defendant sought discretionary review with our Supreme Court seeking review of this Court's unanimous decision on 20 April 2017. Plaintiff filed a conditional petition for discretionary review on 28 April 2017, seeking review of the issue of Plaintiff's contributory negligence. Our Supreme Court allowed both petitions on 8 June 2017.

         By an opinion filed 26 October 2018, the Supreme Court reviewed this Court's decision and held "the trial court correctly determined that defendant was engaged in a governmental function[.]" Meinck, ___ N.C. at ___, 819 S.E.2d at 367. The Supreme Court remanded the issue of "whether the trial court correctly ruled that defendant did not waive governmental immunity by purchasing liability insurance" to this Court. Id. at, 819 S.E.2d at 367. The Supreme Court also held discretionary review of this Court's decision on the issue of Plaintiff's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.