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Legal Update – A city can be sued for negligent maintenance of a storm drain system

By Tom Terrell on August 4, 2009
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            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.

Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.

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  • Posted in:
    Administrative and Regulatory
  • Blog:
    NC Legal Landscapes
  • Organization:
    Fox Rothschild LLP
  • Article: View Original Source

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