Smith v. Scotland Cnty.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-833

Filed 16 July 2025

Scotland County, No. 23CVS000334-820

TEQUILLA SMITH, Adm. of the

Estate of TYREK SMITH, Deceased, Plaintiff,

v.

SCOTLAND COUNTY AND WAGRAM

RECREATION CENTER, Defendants.

Appeal by plaintiff from order entered 14 July 2024 by Judge Dawn M. Layton

in Scotland County Superior Court. Heard in the Court of Appeals 25 February 2025.

Coy E. Brewer, Jr., for plaintiff.

The Rogers Law Firm, PLLC, by Allen W. Rogers, for plaintiff.

Teague, Campbell, Dennis, & Gorham, LLP, by Jacob H. Wellman, for

defendant.

FREEMAN, Judge.

Plaintiff appeals from an order granting defendant’s motion for summary

judgment on her claim that the decedent died as a result of defendant’s negligence.

On appeal, plaintiff argues that the trial court erred by granting defendant’s motion

for summary judgment on the basis that defendant was entitled to governmental

immunity. After careful review, we affirm the trial court’s order.

I. Factual and Procedural Background

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Defendant owns and operates the Wagram Recreation Center (“Wagram

Center”) as part of its parks and recreation programs.1 Wagram Center consists of a

gymnasium with a full-sized basketball court, a fitness room, and office and

community spaces. In June 2021, Wagram Center was equipped with an air

conditioning system. However, there was no air conditioning system in the

gymnasium, which was equipped with ventilation fans.

Defendant offered yearly memberships to use the Wagram Center gymnasium

and fitness room. Membership rates for residents of Scotland County ranged from

$4.00 per day to $325.00 per year “for family members [i]n one household.” Fees for

out-of-county residents ranged from $7.00 per day to $500 per year for a family. In

2020, defendant spent $118,207.73 operating Wagram Center and earned $12,016.87

from all of Wagram Center’s recreation programs. In 2021, defendant spent

$129,045.85 on Wagram Center’s operations and earned $6,000.73 in revenue.

Defendant also offered recreation programs that did not require participants

to purchase a Wagram Center membership. One of these was Adult Free Play

basketball, which was held in the gymnasium. To participate in the Adult Free Play

program, a participant “had to be a certain age, they had to have a physical photo ID,

1 Plaintiff named Scotland County and Wagram Recreation Center as separate defendants in

her complaint. Scotland County denied that Wagram Center was an entity capable of suing and being

sued. As litigation continued, neither party argued that Wagram Center was an entity separate from

Scotland County, and it is not treated as a separate defendant on appeal by either party. Accordingly,

there was a final judgment with respect to the only defendant in the action, Scotland County.

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. . . they would have to sign a waiver, and it was a charge of $2[.00]. If they didn’t

have the $2[.00], then [defendant] would waive it.”

The decedent, twenty-four-year-old Tyrek Smith, often played Adult Free Play

basketball and had signed a liability waiver to do so in November 2020. On 10 June

2021, Smith worked the third shift, 11:45 p.m. to 7:45 a.m., at a Purdue chicken

processing plant. After work on 11 June, Smith went to Wagram Center for Adult

Free Play basketball around 11:45 a.m. That day, the Adult Free Play session was

scheduled for 11:00 a.m. to 2:00 p.m. There was no air conditioning in the gymnasium

during this session.

Smith started playing a pickup game of basketball with a few friends just after

11:45 am. Around 12:45 p.m., Smith laid down on the bleachers, as “it was his turn

to sit down and wait[.]” Shortly after, one of his friends checked on Smith and “tried

to get [Smith] to drink but he wouldn’t.” Thirty minutes later, Smith sat up “slumped

over.” At some point after Smith sat down, he called his mother to tell her that he

was coming home. Around 1:47 p.m., Smith fell to the floor. One of the free play

participants went into the lobby and told the recreation assistant, “Somebody needs

to call 911, somebody had passed out.” When the paramedics arrived around 2:00

p.m., they found Smith unconscious. Smith subsequently passed away. He died of

hyperthermia, meaning his body temperature was greatly above normal. In

November 2021, defendant installed an air conditioning system in the gymnasium.

On 1 June 2023, plaintiff, in her capacity as the personal representative of

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Smith’s estate, sued defendant, alleging that Smith’s death was caused by

defendant’s negligent operation and supervision of the gymnasium. On 22 July 2024,

defendant moved for summary judgment, arguing that (1) it was entitled to

governmental immunity; (2) Smith signed a liability waiver; (3) there was no evidence

that it acted negligently to cause Smith’s death; and (4) if it were negligent, then

Smith was contributorily negligent. On 12 August 2024, the trial court granted

defendant’s motion, concluding that there were “no genuine issues of material fact,

and that [defendant] is entitled to judgment as a matter of law on the issue of

governmental immunity.” Plaintiff timely appealed.

II. Jurisdiction

“[A]ppeal lies of right directly to the Court of Appeals . . . [f]rom any final

judgment of a superior court[.]” N.C.G.S. § 7A-27(b)(1) (2023). Accordingly, we have

jurisdiction to review plaintiff’s appeal.

III. Standard of Review

“The standard of review for a trial court’s ruling on a motion for summary

judgment is de novo.” Horne v. Town of Blowing Rock, 223 N.C. App. 26, 32 (2012)

(cleaned up).

IV. Discussion

Plaintiff argues that the trial court erred by granting defendant’s motion for

summary judgment because defendant “operated Wagram Recreation Center in a

proprietary capacity,” so defendant did “not qualify for . . . governmental immunity[.]”

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Summary judgment “shall be rendered . . . if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that any party is

entitled to judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (2023). “All

facts asserted by the adverse party are taken as true and their inferences must be

viewed in the light most favorable to that party[.]” Dobson v. Harris, 352 N.C. 77, 83

(2000) (cleaned up).

The showing required for summary judgment may be

accomplished by proving an essential element of the

opposing party’s claim does not exist, cannot be proven at

trial, or would be barred by an affirmative defense, or by

showing through discovery that the opposing party cannot

produce evidence to support an essential element of her

claim[.]

Id. (cleaned up).

“Under the doctrine of governmental immunity, a county is immune from suit

for the negligence of its employees in the exercise of governmental functions absent

a waiver of immunity.” Evans v. Hous. Auth. of City of Raleigh, 359 N.C. 50, 53 (2004)

(citation omitted). In other words, “[g]overnmental immunity does not . . . apply when

the municipality engages in a proprietary function.” Estate of Williams ex rel. Overton

v. Pasquotank Cnty. Parks & Recreation Dept., 366 N.C. 195, 199 (2012) (citation

omitted).

A governmental function is one “which is discretionary, political, legislative, or

public in nature and performed for the public good [o]n behalf of the State rather than

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for itself[.]” Britt v. City of Wilmington, 236 N.C. 446, 450 (1952). Generally, “[w]hen

a municipality is acting [o]n behalf of the State in promoting or protecting the health,

safety, security or general welfare of its citizens, it is an agency of the sovereign.” Id.

(cleaned up). However, when a municipality “engages in a public enterprise

essentially for the benefit of the compact community, it is acting within its

proprietary powers.” Id. at 451.

“In determining whether an entity is entitled to governmental immunity, the

result therefore turns on whether the alleged tortious conduct of the county or

municipality arose from an activity that was governmental or proprietary in nature.”

Estate of Williams, 366 N.C. at 199. Our Courts have applied a three-step analysis

to determine whether an activity is governmental or proprietary in nature stating:

First, a court must consider whether the legislature has

designated the activity as governmental or proprietary.

Second, when an activity has not been designated as

governmental or proprietary by the legislature, that

activity is necessarily governmental in nature when it can

only be provided by a government agency or

instrumentality. Finally, when the particular service can

be performed both privately and publicly, the inquiry

involves consideration of a number of additional factors, of

which no single factor is dispositive. Relevant to this

inquiry is whether the service is traditionally a service

provided by a governmental entity, whether a substantial

fee is charged for the service provided, and whether that

fee does more than simply cover the operating costs of the

service provider.

Bynum v. Wilson Cnty., 367 N.C. 355, 358–59 (2014) (citing Estate of Williams, 366

N.C. at 200–03 (2012) (cleaned up)). Thus, “[w]hen the legislature has not directly

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resolved whether a specific activity is governmental or proprietary in nature, other

factors are relevant.” Estate of Williams, 366 N.C. at 202.

We address each factor in turn.

A. Legislative Designation

We first examine the “threshold inquiry”: “whether, and to what degree, the

legislature has addressed the issue.” Meinck v. City of Gastonia, 371 N.C. 497, 503

(2018) (citation omitted). “The creation and operation of public . . . recreation

programs are legitimate and traditional functions of the government.” Hickman ex

rel. Womble v. Fuqua, 108 N.C. App. 80, 84 (1992) (cleaned up). Our General

Assembly has declared that:

[T]he public good and the general welfare of the citizens of

this State require adequate recreation programs, that the

creation, establishment, and operation of parks and

recreation programs is a proper governmental function,

and that it is the policy of North Carolina to forever

encourage, foster, and provide these facilities and

programs for all its citizens.

N.C.G.S. § 160A-351 (2023); see also id. § 160A-353(4) (2023) (“each county . . . in this

State shall have the authority to . . . [p]rovide, acquire, construct, equip, operate, and

maintain . . . recreation centers, and recreation facilities[.]”). “ ‘Recreation’ means

activities that are diversionary in character and aid in promoting entertainment,

pleasure, relaxation, instruction, and other physical, mental, and cultural

development and leisure time experiences.” Id. § 160A-352 (2023).

However, “not every nuanced action that could occur in a park or other

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recreation facility has been designated as governmental or proprietary in nature by

the legislature.” Estate of Williams, 366 N.C. at 202. Accordingly, we must determine

whether the “nuanced activity” here has been designated as governmental by the

legislature.

Plaintiff argues that we should take a broad view of the “nuanced activities,”

and asserts that they are: “operating a gymnasium; charging fees for the use of the

gymnasium, including ‘free play’ activities; charging membership rates for its fitness

room.” Defendant, on the other hand, maintains that we should only “look at the

nuanced activity in which Mr. Smith was actually participating at the time of the

incident to determine whether [defendant’s] operation of [Wagram Center] was

governmental in nature.”

Binding precedent supports that we view the “nuanced activity” narrowly. See

Moffit v. City of Asheville, 9 S.E. 695, 697 (N.C. 1889) (“The liability of cities and

towns for the negligence of their officers or agents depends upon the nature of the

power that the corporation is exercising when the damage complained of is sustained.”

(emphasis added)). For example, in Estate of Williams, the defendant-county’s

alleged tortious conduct occurred in a swimming area of a public park, and the

swimming area could be rented out for private purposes. 366 N.C. at 196–97. Our

Supreme Court only examined the defendant-county’s maintenance and operation of

that specific portion of the park, not the county’s operation of the park as a whole. Id.

at 201. Further, the plaintiff’s complaint specifically identified the county’s operation

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of the swimming area as the alleged tortious conduct. Id. at 196–97.

Here, plaintiff alleged in her complaint that defendant was negligent in “its

operation, maintenance, supervision, and control of the Wagram Recreation Center,

particularly in relationship to property upon which Tyrek Smith was harmed,

injured, and died.” Plaintiff specifically alleged that the cause of Smith’s death was

the lack of air conditioning in the gymnasium where Adult Free Play basketball took

place. Additionally, there is no evidence in the record before us that Smith

participated in any of the other recreation programs offered at Wagram Center.

Because the alleged tortious conduct was defendant’s operation of the Adult Free Play

basketball program, which included operating the gymnasium where Adult Free Play

basketball took place, we focus our analysis on that “nuanced activity” and not

defendant’s operation of Wagram Center as a whole.

Offering access to an indoor gymnasium for adults to play pick-up basketball

is an activity that fosters entertainment and physical development, so Adult Free

Play basketball may be a recreation program that the legislature has declared as a

proper governmental activity. See, e.g., Hickman, 108 N.C. App. at 84 (“[W]e hold

that when a municipality provides free sports instruction . . . , it is acting in a

governmental capacity. Our holding is made even clearer in light of the General

Assembly’s pronouncement on the general subject [in N.C.G.S. § 160A-351].”).

However, considering that the legislature has not expressly designated this activity

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as a governmental function, we will address the remaining factors.2

B. Governmental Exclusivity

We next examine whether the nuanced activity, Adult Free Play basketball,

could “only be provided by a government agency or instrumentality.” Bynum, 367

N.C. at 359 (citation omitted). If so, then the “activity is necessarily governmental[.]”

Id. (citation omitted). Operating a gymnasium for pick-up basketball is not

exclusively reserved for the government; it could be done by a public or private entity.

Therefore, this factor is not dispositive of whether offering Adult Free Play basketball

is a governmental function. But given that the distinction between exclusively

governmental activities and activities that can be performed by public or private

entities “lacks the utility it once had[,]” Estate of Williams, 366 N.C. at 204, as “it is

increasingly difficult to identify services that can only be rendered by a governmental

entity[,]” id. at 202, this factor has little weight in our analysis.

C. Other Factors

Finally, we examine “a number of additional factors,” such as “whether the

2 Continuing this analysis is consistent with precedent. For example, our Supreme Court

acknowledged that the defendant-city’s activity, leasing buildings it owned in its downtown area to

local artists, was authorized by the Urban Redevelopment Law, N.C.G.S. §§ 160A-500 to -526 (2017),

and the Municipal Service District Act, N.C.G.S. §§ 160A-535 to -544 (2017). Meinck, 371 N.C. at 504–

14 (“We conclude that these provisions of the Urban Redevelopment Law and the Municipal Service

District Act are statutory indications that an urban redevelopment project undertaken in accordance

with these statutes for the purpose of promoting the health, safety, and welfare of the inhabitants of

the State of North Carolina is a governmental function.” (cleaned up)). However, recognizing that a

general activity being declared as governmental does not mean that the “specific activity at issue, in

this case and under these circumstances, is a governmental function[,]” the Supreme Court addressed

the two remaining factors. Id. at 513–14 (cleaned up).

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service is traditionally provided by a governmental entity, whether a substantial fee

is charged for the service provided, and whether that fee does more than simply cover

the operating costs of the service provider.” Bynum, 367 N.C. at 359.

1. Traditionally Provided by a Governmental Entity

As discussed above, providing recreation programs for physical activity is

traditionally a function of the government. E.g., Hickman, 108 N.C. App. at 84

(holding that the defendant-county offering free tennis instruction for children was a

traditional government function). Thus, this factor weighs in favor of Adult Free Play

basketball being a governmental activity.

2. Substantial Fee

Whether a substantial fee is charged can indicate whether an activity was done

for pecuniary gain. But the mere charging of a fee does not conclusively identify an

undertaking as proprietary. Indeed, we have rejected the idea that “one of the major

tests in labeling a government activity proprietary is whether a monetary fee is

involved.” McIver v. Smith, 134 N.C. App. 583, 586 (1999). Thus, it is not whether a

fee was charged that indicates whether an activity is a governmental function, but

whether the fee transforms the activity from one done for the “common good” to one

done “for pecuniary profit.” Id. at 587.

Instructive here is Willet v. Chatham County Board of Education, 176 N.C.

App. 268 (2006). There, we held that a school board’s operation of a basketball team

was a governmental function where the “admission fee of $1.00 for students and $2.00

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for parents was hardly ‘substantial’ and there [was] no evidence in the record to show

that the basketball admission charges generated enough revenue to pay for anything

other than the school’s athletic program.” Id. at 271–72.

Here, defendant charged $2.00 per session of the Adult Free Play basketball

program. Given that this Court has held that a $2.00 fee is “hardly substantial,” the

low amount charged indicates that defendant’s operation of this program is a

governmental function and not a proprietary one.3 Moreover, defendant would waive

the fee if a participant did not have money to pay for it. This further supports that

the primary purpose in operating the program was advancing the common good, not

generating revenue.

3. Revenue Generated Versus Operating Costs

Finally, we evaluate whether the fee did more than cover the cost of operation,

cognizant that an activity still may be deemed proprietary even if the revenue

generated falls short of covering operating costs. See, e.g., Sides v. Cabarrus Mem’l

Hosp., Inc., 287 N.C. 14, 24 (1975) (“[T]he fact that the operation as a whole is

nonprofitable is not determinative as to whether the activity will be classified as

3 In her reply brief, plaintiff asserts that the true cost of Adult Free Play basketball “was more

than $2.00—patrons were required to sign a waiver of liability, purportedly signing away their right

to be compensated for any injuries that may occur because of [defendant’s] operation of the

gymnasium.” But plaintiff cites no legal authority to support that a signed liability waiver increases

the cost of the fee charged, so we consider this argument abandoned. See Fairfield v. WakeMed, 261

N.C. App. 569, 575 (2018) (“Plaintiffs do not cite any legal authority in support of this argument as

required by the North Carolina Rules of Appellate Procedure. Therefore, we deem this issue to be

abandoned.”).

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proprietary or governmental.”); Glenn v. City of Raleigh, 246 N.C. 469, 472, 477 (1952)

(earning $18,531.14 in net revenue from a public park after spending $25,125.01 on

maintenance expenses and $18,870.95 on recreation expenses for the park was a

“corporate benefit or pecuniary profit . . . to the [defendant-city] as to exclude the

application of governmental immunity.”).

For example, in Koontz v. City of Winston-Salem, our Supreme Court examined

whether the defendant-city was entitled to governmental immunity when it

contracted with the county in which the city was located to dispose of its garbage.

280 N.C. 513, 528 (1972). The General Assembly had authorized cities to

[S]ummarily remove, abate, or remedy . . . everything in

the city limits, or within a mile of such limits, which is

dangerous or prejudicial to the public health; and the

expense of such action shall be paid by the person in

default, and, if not paid, shall be a lien upon the land or

premises where the trouble arose, and shall be collected as

unpaid taxes.

Id. (omission in original) (quoting N.C.G.S. § 160-234). Under the contract with the

county, however, “licensed private collectors picked up garbage in areas outside of the

city limits and delivered it to the city’s landfill site.” Id. The defendant-city “received

9.39% of its cost for the landfill operations[,]” which was “over and beyond incidental

income.” Id. at 529–30. But it was not only the revenue generated that made this

activity proprietary:

By use of the contract, . . . the [defendant-city] could extend

its protection against accumulated garbage and refuse for

more than one mile from its territorial limits. Also, the

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[defendant-city] avoided the possibility of having to collect

the cost of removal of garbage pursuant to the statute; and,

further, avoided the very real possibility of litigation to

enforce the lien provided by the statute. Thus, there were

advantages under the contract with [the county] which

inured to the [defendant-city’s] special corporate benefit and

thereby brought defendant within the often announced rule

that a municipality acts in a proprietary capacity when it

receives special corporate benefit or pecuniary profit.

Id. (emphasis added) (cleaned up).4 Therefore, the defendant-city was not entitled to

governmental immunity for this undertaking. Id.

On the other hand, in Meinck v. City of Gastonia, the defendant-city rented out

some of its downtown properties to a local artistic nonprofit to “sublease portions of

the building to individual artists . . . to use as studios[.]” 371 N.C. at 498–99.

[T]he lease set[ ] rental rates for the . . . subtenants in a

range of not more than $90.00 to $375.00 per month, of

which 90% [was] paid to [the defendant-city]. Furthermore,

[the defendant-city] receiv[ed] 15% of all sales or

commissions under the lease, and subtenants [were]

required to provide additional consideration in the form of

volunteer time, with a minimum of fifteen hours per

month.

Id. at 515. In one fiscal year, the defendant-city earned $21,572.98 from the subleases

but spent $33,062.01—netting a loss of $11,489.03, meaning the defendant-city

4 We note the Koontz Court also discussed Glenn v. City of Raleigh, and stated, as plaintiff

asserts here, that “the city received 11.7% of the cost of maintenance of its parks,” which was

approximately $158,000 for all of the city’s parks, but only examined the net revenue of the park where

the alleged tortious conduct occurred. 280 N.C. at 527 (citing Glenn, 246 N.C. at 472). Since Koontz,

however, our Supreme Court has instructed that we examine “nuanced activity” in which the

municipality is engaged: not the entire recreation or parks program budget. See Estate of Williams,

366 N.C. at 202.

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earned back about 65% of what it spent on the undertaking. Id. The following fiscal

year, the net loss was $18,072.86, so it earned approximately 55% of what it spent on

the activity that fiscal year. Id.

Our Supreme Court concluded these revenues were not “ ‘substantial,’

particularly because such revenues were not even designed to ‘simply cover the

operating costs of the service provider,’ nor did they do so in reality.” Id. (quoting

Estate of Williams, 366 N.C. at 202–03). The Court also noted that the activity was

of a “decidedly noncommercial nature” because “[a]rt occupies a unique role in our

society and our state[.]” Id. at 516. Accordingly, the defendant-city was entitled to

governmental immunity for that specific activity.

Here, the operation of Wagram Center in its entirety in 2020 netted a loss of

$106,190.86, meaning defendant earned back about 10% of what it spent to operate

Wagram Center. The following year, Wagram Center netted a loss of $123.045.12,

meaning defendant earned back about 4.5% of the operational cost. We do not know

precisely how much the fees from the Adult Free Play basketball program contributed

to those revenues. Considering the low fee charged for that program compared to the

higher fees charged for other activities, like annual memberships, the Adult Free Play

basketball program could at best have generated a small fraction of Wagram Center’s

annual revenue.

Even if we consider the revenue of Wagram Center as a whole, it is well below

the proportion of the revenue earned in Meinck, which supports a determination that

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this is a governmental function. On the other hand, the proportional cost of operating

Wagram Center is comparable to the cost of the waste disposal activity in Koontz,

where our Supreme Court held that the defendant-city engaged in a proprietary

activity. But unlike Koontz, where the contract gave the defendant-city advantages

that it did not have under the statute, defendant here does not partner with another

entity to give it such a benefit. Therefore, the total operating loss of Wagram Center

indicates that defendant operated Wagram Center for the common good and not for

its own pecuniary benefit, which supports the conclusion that defendant was entitled

to governmental immunity.

V. Conclusion

Defendant’ operation of the Adult Free Play basketball program is authorized

by the legislature and furthers its aim of offering recreation programs to citizens of

this State. The small fee charged, which defendant waived at times, and the

significant total operating loss for Wagram Center further demonstrate that

defendant’s activity was done for the good of the public, not for its own pecuniary

gain. Therefore, the trial court did not err by granting defendant’s motion for

summary judgment on the basis that defendant was entitled to governmental

immunity, and we affirm the trial court’s summary judgment order.

AFFIRMED.

Chief Judge DILLON and Judge HAMPSON concur.

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