Tort/Negligence – Governmental Immunity – Proprietary vs. Governmental Function – Change of Purpose – Water Pipe Leak

According to defendants, although defendant Hall started his drive on 2 January 2018 in order to perform the proprietary function of repairing a water main leak in a city-owned water line, he then saw that the leak was coming from a privately owned line across the street. Therefore, defendants contend, just before Hall made the abrupt U-turn that caused his collision with plaintiff, Hall had become engaged in the governmental function of cutting the water off for the safety of the public on the freezing winter morning. However, since Hall’s sole duty on the morning of January 2 was to repair a city-owned water main line – a proprietary purpose for which defendants are not immune from suit – the trial court did not err in finding it had jurisdiction over defendants.

We affirm the trial court’s denial of defendants’ motion to dismiss.

“The mission of the town’s employee, out of which the alleged injury to the plaintiff arose, is the determining factor . . . not what such employee was called upon to do at other times and places, but what he was engaged in doing at the particular time and place alleged.” Jones v. Kearns, 120 N.C. App. 301, 462 S.E.2d 245 (1995). In Jones, the “particular time and place alleged” was a police officer’s actions as a safety officer responding to an emergency during her assignment at a proprietary fair.

This court noted that, in accordance with her assigned mission, the officer was actively responding to the emergency as an officer when the tortious conduct occurred. However, this fact was not dispositive in our court’s holding. Jones held that the officer’s mission at the time of the tortious conduct was governmental because she was generally assigned to police the fair as a safety officer, despite the proprietary nature of the fair.

Further, in Hodges v. City of Charlotte, 214 N.C. 737, 200 S.E. 889 (1939) the court held that the particular time and place alleged was the employee’s assigned task of repairing traffic signals, a governmental duty, despite his simultaneous employment as a street inspector, a proprietary role. The Hodges plaintiff put forth an argument similar to the one posed by defendants in this case, contending that the defendant employee’s mission could have been both governmental and proprietary, and that the employee could have shifted between the two based on his subjective intent, during his assignment.

The court in Hodges expressly rejected this argument because the employee was assigned a “specific job” which was his “sole duty” when the tortious conduct occurred. We are bound to reach a similar result here.

It is true that these cases present the longstanding rule that an employee who ordinarily works for a proprietary purpose may be found to conduct actions for a governmental purpose, or vice versa, based on the particular time and place the tortious conduct occurred. However, our courts have never so narrowly parsed an employee’s assignment into its individual events in order to determine governmental or proprietary purpose. To do so would be to adopt a new rule of law, that a purpose or mission must be assessed as of the exact moment in time even when it would indicate a deviation from the employee’s generally assigned mission.

While similar legal principles exist in analogous areas of law, such as frolics, in other contexts of respondeat superior liability, a rule of this kind has never been applied by our courts in the current context.

The undisputed evidence showed only that Hall was attempting a U-turn at the time the accident occurred. Defendants maintained that Hall turned in order to travel back in the direction of the leak, but this was also the route Hall would have taken to begin a return trip after learning there was no water main break. Regardless of whether the service was performed or needed, the evidence showed that Hall’s sole duty on the morning of January 2 was to repair a city-owned water main line—a proprietary purpose for which defendants are not immune from suit.

The trial court did not err in concluding the evidence showed “Hall was engaged in the performance of a proprietary function within the course and scope of his employment with [the city] at the time of the vehicular collision in question.”

Affirmed.

Torres v. City of Raleigh (Lawyers Weekly No. 011-074-23, 16 pp.) (Jefferson Griffin, J.) Appealed from Wake County Superior Court (John Smith, J.) William Plyler, Robert Rader and William Webb for plaintiff; Hunt Choi and Amy Petty for defendants. North Carolina Court of Appeals