JOAN A. MEINCK, Plaintiff,
CITY OF GASTONIA, a North Carolina Municipal Corporation, Defendant.
Originally heard 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.
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
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.
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
of the Court
of Appeals to address that issue.
___ 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
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.
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).
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
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.
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.
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
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
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
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.
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