Meinck v. City of Gastonia

IN THE SUPREME COURT OF NORTH CAROLINA

No. 130PA17

Filed 26 October 2018

JOAN A. MEINCK

v.

CITY OF GASTONIA, a North Carolina Municipal Corporation

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 798 S.E.2d 417 (2017), reversing and

remanding an order granting summary judgment entered on 1 June 2016 by Judge

Lisa Bell in Superior Court, Gaston County. On 8 June 2017, the Supreme Court

allowed plaintiff’s petition for discretionary review of additional issues. Heard in the

Supreme Court on 6 February 2018.

Law Office of Thomas D. Bumgardner, PLLC, by Thomas D. Bumgardner, for

plaintiff-appellee/appellant.

Stott, Hollowell, Palmer & Windham, L.L.P., by Martha Raymond Thompson

and Aaron C. Low, for defendant-appellant/appellee.

Martin & Jones, PLLC, by Huntington M. Willis; and Terpening Wilder Law,

by William R. Terpening, for North Carolina Advocates for Justice, amicus

curiae.

Clawson and Staubes, PLLC, by Andrew J. Santaniello; and Kimberly S.

Hibbard, NCLM General Counsel, and Gregory F. Schwitzgebel III, NCLM

Associate General Counsel, for North Carolina Association of Defense Attorneys

and North Carolina League of Municipalities, amici curiae.

HUDSON, Justice.

MEINCK V. CITY OF GASTONIA

Opinion of the Court

Here we consider whether the trial court erred in granting a motion for

summary judgment in favor of defendant, the City of Gastonia, based upon the

doctrine of governmental immunity. The Court of Appeals concluded that

governmental immunity did not apply and reversed the trial court’s order granting

summary judgment in favor of defendant. Meinck v. City of Gastonia, ___ N.C. App.

___, 798 S.E.2d 417 (2017). Because we conclude that defendant is entitled to

governmental immunity, we reverse the decision of the Court of Appeals and remand

this case to that court for further proceedings.

Background

In 2011 defendant purchased from Gaston County a historic building located

at 212 West Main Avenue in downtown Gastonia. According to an affidavit and

deposition testimony from defendant’s city manager, Edward C. Munn, defendant

had determined that this vacant building was in a “strategic location” for defendant’s

effort to redevelop and revitalize the downtown area, which was rife with vacant and

deteriorating properties. According to Munn, “your downtown is your face. It is how

you project your image to the rest of anyone who wants to do commerce or if you want

to live there.” Defendant’s intent in purchasing the building was to preserve it “but

also to put it into use” and “not [ ] allow it to be vacant and deteriorate.” Defendant

had further determined that, based on other successful examples throughout the

country, one of the “key pieces” necessary for revitalization was “bringing artists into

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Opinion of the Court

the downtown” and into the older buildings with the idea that the downtown area

would thus become more attractive for businesses and people.

To that end, defendant began leasing the property to “nonprofit arts groups,”

first to the Gaston County Arts Council, Inc. from 2011 to 2013, and then, beginning

in mid-2013, to the Gaston County Art Guild (the Art Guild). As with the nearly

identical first lease agreement, the lease agreement between defendant and the Art

Guild (the lease) provided that the Art Guild was to sublease portions of the building

to individual artists (the subtenants) to use as studios—a cooperative enterprise1

referred to as “Arts on Main.” Under the lease defendant was responsible for

maintaining the exterior of the premises and also had the right to inspect the property

at any time.2 The lease required the Art Guild to use the property “only for purposes

of an art gallery and artists’ studios and a gift shop” and required the subtenants to

use the property only for creating and selling works of art. The lease fixed the rents

to be paid by subtenants for the studio spaces at a range of $90.00 to $375.00 per

month and provided that all art sales made at the property were subject to a 30%

commission.

Under the lease defendant received 90% of all rents paid by the subtenants

and 15% of “the gross receipts from all sales or commissions occurring on” the

1 While one attachment to the lease described Arts on Main as “a cooperative

business,” Munn testified that it was more accurately characterized as “a non-profit

cooperative effort to promote the arts.”

2 The subtenants’ studio spaces were subject to inspection during normal business

hours.

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Opinion of the Court

property.3 In addition, the lease required the subtenants to provide as consideration

a minimum of fifteen hours per month of volunteer time tending the gallery and gift

shop, and subtenants were expected to provide additional volunteer time necessary

for the operation of Arts on Main as a “viable operation.” In the 2013 fiscal year,

defendant’s revenues received from the rents and sales or commissions amounted to

$21,572.98. Defendant’s expenditures for that year totaled $33,062.01, which netted

a loss of $11,489.03 for 2013. In the 2014 fiscal year, defendant’s revenues from the

rents and sales or commissions totaled $21,935.57 and its expenditures totaled

$40,008.13, netting defendant a loss of $18,072.56. Additionally, Munn testified that

defendant spent money on labor and overhead but did not include those items in its

financial spreadsheet. According to Munn, the city did not seek to make a profit from

the lease with the Art Guild and “there’s no profit in this operation.”

On 11 December 2013, plaintiff, who was one of the subtenants of the Art

Guild, was leaving the building through a rear exit carrying a stack of large pictures

when she lost her balance on a set of steps and fell. Evidence tended to show that

part of the concrete steps had eroded. Plaintiff suffered a broken hip and other

injuries as a result of her fall, and she “required emergency medical treatment,

3 The Court of Appeals erroneously stated that the lease “guaranteed Defendant 30%

of the gross sales receipts received for art the Art Guild sold on the premises.” Meinck, ___

N.C. App. at ___, 798 S.E.2d at 420. The lease subjected art sold by subtenants on the

property to a minimum 30% commission, but under the lease defendant only received “an

amount equal to 15% of the gross receipts from all sales or commissions occurring on the

Premises.” Presumably, the Art Guild was entitled to the other portion of commissions.

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Opinion of the Court

surgery, hospitalization, and substantial rehabilitation.” On 4 February 2015,

plaintiff filed a complaint against defendant alleging that defendant was negligent in

failing to maintain the building’s exit in a reasonably safe condition and failing to

warn of the dangerous and hazardous condition of the exit. Plaintiff’s complaint

alleged that defendant had waived any claim of governmental immunity by

purchasing liability insurance and also that defendant’s tortious conduct occurred

while defendant was engaged in a proprietary function, thereby depriving 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 therefore, defendant had not waived

any claim of governmental immunity. The trial court further concluded that “the City

leased the property to the Art Guild as part of its governmental function to revitalize

the downtown area, preserve a historical structure, and prevent deterioration of the

downtown area” and accordingly, was “entitled to governmental immunity regarding

Plaintiff’s claims.” On that basis, the trial court granted summary judgment for

defendant. Additionally, the trial court determined that, although the issue was moot

in light of the court’s ruling on immunity, the court would deny defendant’s motion

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Opinion of the Court

for summary judgment based on plaintiff’s contributory negligence. Plaintiff

appealed this order to the Court of Appeals.

At the Court of Appeals plaintiff argued that defendant’s ownership and

maintenance of the building leased to the Art Guild as part of defendant’s downtown

revitalization efforts was a proprietary function and not a governmental function;

therefore, defendant was not entitled to governmental immunity. The Court of

Appeals agreed, noting first that governmental immunity applies only if a

municipality is engaging in a governmental function, as opposed to a proprietary

function. Meinck, ___ N.C. App. at ___, 798 S.E.2d at 421. The court stated that the

“threshold inquiry” in making the distinction between governmental and proprietary

functions is “whether, and to what degree, the legislature has addressed the issue.”

Id. at ___, 798 S.E.2d at 421 (quoting Estate of Williams v. Pasquotank Cty. Parks &

Recreation Dep’t, 366 N.C. 195, 200, 732 S.E.2d 137, 141-42 (2012)). The court

determined that the legislature did not specify in N.C.G.S. § 160A-272, which

authorizes cities to lease property to private parties, whether such activity is

governmental or proprietary. Id. at ___, 798 S.E.2d at 421. Here the Court of Appeals

also recognized that N.C.G.S. § 160A-535 authorizes cities to establish municipal

service districts for the purpose of downtown revitalization projects like the one

engaged in by defendant here but determined that “[n]owhere has the legislature

deemed all downtown revitalization projects undertaken by a city within a service

district to be activities[ ] which are exempt from suit through governmental

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immunity.” Id. at ___, 798 S.E.2d at 421. Addressing the next inquiry, which is

whether an activity “can only be provided by a governmental agency or

instrumentality,” id. at ___, 798 S.E.2d at 421 (quoting Williams, 366 N.C. at 202,

732 S.E.2d at 142), the court determined that “[t]he ownership and maintenance of

property leased to a private entity is not an activity[ ] which is provided only by a

governmental agency or instrumentality,” id. at ___, 798 S.E.2d at 421-22.

The Court of Appeals then addressed additional factors, including “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.” Id. at ___, 798 S.E.2d

at 422 (quoting Williams, 366 N.C. at 202-03, 732 S.E.2d at 143 (footnotes omitted)).

The court determined that defendant’s activity here is not one “solely and

traditionally provided by a governmental entity.” Id. at ___, 798 S.E.2d at 422.

Further, in reliance on Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913 (1957),

the court determined that, although defendant’s revenues from the rents and sales or

commissions did not cover its operating costs and were far exceeded by its

expenditures, the revenues were “substantial” and provided “such a pecuniary

advantage to exclude the application of government immunity as a matter of law,”

id. at ___, 798 S.E.2d at 422 (citing Glenn, 246 N.C. at 476-77, 98 S.E.2d at 918-19).

The court held that “[i]n light of all these factors,” defendant was not entitled to

governmental immunity, id. at ___, 798 S.E.2d at 422, and it thus reversed the trial

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Opinion of the Court

court’s entry of summary judgment in favor of defendant on that basis, id. at ___, 798

S.E.2d at 424. Having reached this conclusion, the court did not address plaintiff’s

argument that defendant’s non-waiver provision in its liability insurance contract did

not effectively preserve defendant’s governmental immunity.

Additionally, the court addressed the parties’ arguments on negligence and

contributory negligence. Id. at ___, 798 S.E.2d at 422-24. The court determined that

“Plaintiff’s forecast of evidence is sufficient to raise the genuine issues of material

fact of whether Defendant negligently failed to maintain the steps on which Plaintiff

tripped or acted negligently in failing to warn about the condition of the steps.” Id.

at ___, 798 S.E.2d at 423. Moreover, the court determined that “a jury could find

Plaintiff . . . acted reasonably in using the exit with the hazardous steps” because

“[n]o evidence of other means of exiting the building was presented” and “[t]he

carrying of large pictures out of the art gallery is a reasonable, non-negligent use of

the exit.” Id. at ___, 798 S.E.2d at 424. Accordingly, the court concluded that

defendant was not entitled to summary judgment on the issue of plaintiff’s

contributory negligence. Id. at ___, 798 S.E.2d at 424.

On 20 April 2017, defendant filed a petition for discretionary review seeking

review of the decision of the Court of Appeals that concluded that governmental

immunity did not apply and that plaintiff was not contributorily negligent as a matter

of law. Plaintiff filed a conditional petition for discretionary review on 28 April 2017

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Opinion of the Court

also seeking review of the issue of plaintiff’s contributory negligence. This Court

allowed both petitions on 8 June 2017.

Analysis

Defendant argues that the Court of Appeals erred in reversing the trial court’s

order granting summary judgment for defendant on the basis of governmental

immunity. We agree.

Summary judgment “shall be rendered forthwith 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 a judgment as a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (2017). We

review a trial court’s order denying a motion for summary judgment de novo. E.g.,

Bynum v. Wilson County., 367 N.C. 355, 358, 758 S.E.2d 643, 645 (2014) (citing

Williams, 366 N.C. at 198, 732 S.E.2d at 140). We review decisions of the Court of

Appeals for errors of law. E.g., Irving v. Charlotte-Mecklenburg Bd. of Educ., 368

N.C. 609, 611, 781 S.E.2d 282, 284 (2016) (citing N.C. R. App. P. 16(a)).

“Under the doctrine of governmental immunity, a county or municipal

corporation ‘is immune from suit for the negligence of its employees in the exercise of

governmental functions absent waiver of immunity.’ ” Williams, 366 N.C. at 198, 732

S.E.2d at 140 (emphasis added) (quoting Evans ex rel. Horton v. Hous. Auth. Of

Raleigh, 359 N.C. 50, 53, 602 S.E.2d 668, 670 (2004)). When, however, a county or

municipality is engaged in a “proprietary function,” governmental immunity does not

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apply. Id. at 199, 732 S.E.2d at 141 (emphasis added) (citing Town of Grimesland v.

City of Washington, 234 N.C. 117, 123, 66 S.E.2d 794, 798 (1951)). As a result, the

determination of “whether an entity is entitled to governmental immunity . . . turns

on whether the alleged tortious conduct of the county or municipality arose from an

activity that was governmental or proprietary in nature.” Id. at 199, 732 S.E.2d at

141.

In Williams we addressed this distinction between governmental and

proprietary functions, noting that:

We have long held that a “governmental” function is

an activity that is “discretionary, political, legislative, or

public in nature and performed for the public good in behalf

of the State rather than for itself.” Britt v. City of

Wilmington, 236 N.C. 446, 450, 73 S.E.2d 289, 293 (1952).

A “proprietary” function, on the other hand, is one that is

“commercial or chiefly for the private advantage of the

compact community.” Id.[ at 450, 73 S.E.2d at 293]; see

also Evans, 359 N.C. at 54, 602 S.E.2d at 671 (describing

the test set forth in Britt as our “one guiding principle”).

Our reasoning when distinguishing between

governmental and proprietary functions has been

relatively simple, though we have acknowledged the

difficulties of making the distinction. Evans, 359 N.C. at

54, 602 S.E.2d at 671 (“The difficulties of applying this

principle have been noted.” (citations omitted)). “When a

municipality is acting ‘in 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. When it

engages in a public enterprise essentially for the benefit of

the compact community, it is acting within its proprietary

powers.” Britt, 236 N.C. at 450-51, 73 S.E.2d at 293.

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Id. at 199-200, 732 S.E.2d at 141 (citation omitted). Furthermore, to aid in making

this distinction, we recognized that “[o]ur case law demonstrates that a number of

factors are relevant when ascertaining whether action undertaken by a county or

municipality is governmental or proprietary in nature.” Id. at 200, 732 S.E.2d at 141.

First, we concluded that “the threshold inquiry . . . is whether, and to what

degree, the legislature has addressed the issue.” Id. at 200, 732 S.E.2d at 141-42; see

id. at 200-01, 732 S.E.2d at 142 (“This is especially so given . . . that any change in

the common law doctrine of governmental immunity is a matter for the legislature.”

(citation omitted)). Recognizing that even the legislature’s designation of a general

activity as a governmental function may not be dispositive on the specific facts of a

case, we stated that “[w]hen the legislature has not directly resolved whether a

specific activity is governmental or proprietary in nature, other factors are relevant.”

Id. at 202, 732 S.E.2d at 142. The first of these additional factors is whether “the

undertaking is one in which only a governmental agency could engage,” in which case

“it is perforce governmental in nature.” Id. at 202, 732 S.E.2d at 142 (citations

omitted). Acknowledging that in more recent years this determination had become

“increasingly difficult” because “many services once thought to be the sole purview of

the public sector have been privatized in full or in part,” we continued, stating that

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

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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. We conclude that consideration of these factors

provides the guidance needed to identify the distinction

between a governmental and proprietary activity.

Nevertheless, we note that the distinctions between

proprietary and governmental functions are fluid and

courts must be advertent to changes in practice. We

therefore caution against overreliance on these four

factors.

Id. at 202-03, 732 S.E.2d at 143 (footnotes omitted). Finally, we emphasized that “the

proper designation of a particular action of a county or municipality is a fact intensive

inquiry” and “may differ from case to case.” Id. at 203, 732 S.E.2d at 143.

Here it is undisputed that the activity out of which defendant’s alleged tortious

conduct arose was defendant’s leasing of the property at 212 West Main Avenue to

the Art Guild. It is further undisputed that defendant purchased this historic and

vacant property and entered into the lease as part of its efforts at urban

redevelopment and downtown revitalization. With regard to the “threshold inquiry”

under Williams, id. at 200, 732 S.E.2d at 141-42, several statutes are relevant to the

activity in which defendant was engaged.

First, N.C.G.S. § 160A-272 authorizes a city to lease or rent any property it

owns “but not for longer than 10 years . . . and only if the council determines that the

property will not be needed by the city for the term of the lease.” N.C.G.S. § 160A-

272(a) (2017). This statute requires the lease or rental agreement to be authorized

by a resolution “adopted at a regular council meeting upon 30 days’ public notice.”

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Id. § 160A-272(a1) (2017).4 Nothing in this statute indicates any intent by the

legislature to designate the leasing of property authorized therein as a governmental

or proprietary function. As a result, we conclude that the legislature has not

addressed whether the leasing by a city of its unused property is generally a

governmental or proprietary function. Additional statutes, however, are more

specific to the activity engaged in by defendant here.

In Article 22 of Chapter 160A (the Urban Redevelopment Law), the legislature

addressed the problem of “blighted areas” and authorized municipalities to engage in

“redevelopment projects” in the interest of public health, safety, convenience, and

welfare. N.C.G.S. §§ 160A-500 to -526 (2017). In N.C.G.S. § 160A-501 the legislature

made the following findings:

(1) That there exist in urban communities in this State

blighted areas as defined herein.

(2) That such areas are economic or social liabilities,

inimical and injurious to the public health, safety,

morals and welfare of the residents of the State,

harmful to the social and economic well-being of the

entire communities in which they exist, depreciating

values therein, reducing tax revenues, and thereby

depreciating further the general community-wide

values.

(3) That the existence of such areas contributes

substantially and increasingly to the spread of disease

4 “No public notice . . . need be given for resolutions authorizing leases or rentals for

terms of one year or less, and the council may delegate to the city manager or some other city

administrative officer authority to lease or rent city property for terms of one year or less.”

N.C.G.S. § 160A-272(b) (2017).

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and crime, necessitating excessive and

disproportionate expenditures of public funds for the

preservation of the public health and safety, for crime

prevention, correction, prosecution, punishment and

the treatment of juvenile delinquency and for the

maintenance of adequate police, fire and accident

protection and other public services and facilities,

constitutes an economic and social liability,

substantially impairs or arrests the sound growth of

communities.

(4) That the foregoing conditions are beyond remedy or

control entirely by regulatory processes in the exercise

of the police power and cannot be effectively dealt with

by private enterprise under existing law without the

additional aids herein granted.

(5) That the acquisition, preparation, sale, sound

replanning, and redevelopment of such areas in

accordance with sound and approved plans for their

redevelopment will promote the public health, safety,

convenience and welfare.

Id. Accordingly, the legislature

hereby declared [it] to be the policy of the State of North

Carolina to promote the health, safety, and welfare of the

inhabitants thereof by the creation of bodies corporate and

politic to be known as redevelopment commissions, which

shall exist and operate for the public purposes of acquiring

and replanning such areas and of holding or disposing of

them in such manner that they shall become available for

economically and socially sound redevelopment. Such

purposes are hereby declared to be public uses for which

public money may be spent, and private property may be

acquired by the exercise of the power of eminent domain.

Id. The legislature made additional findings in N.C.G.S. § 160A-502, providing:

(1) That the cities of North Carolina constitute important

assets for the State and its citizens; that the

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preservation of the cities and of urban life against

physical, social, and other hazards is vital to the safety,

health, and welfare of the citizens of the State, and

sound urban development in the future is essential to

the continued economic development of North

Carolina, and that the creation, existence, and growth

of substandard areas present substantial hazards to

the cities of the State, to urban life, and to sound future

urban development.

(2) That blight exists in commercial and industrial areas

as well as in residential areas, in the form of

dilapidated, deteriorated, poorly ventilated, obsolete,

overcrowded, unsanitary, or unsafe buildings,

inadequate and unsafe streets, inadequate lots, and

other conditions detrimental to the sound growth of the

community; that the presence of such conditions tends

to depress the value of neighboring properties, to

impair the tax base of the community, and to inhibit

private efforts to rehabilitate or improve other

structures in the area; and that the acquisition,

preparation, sale, sound replanning and

redevelopment of such areas in accordance with sound

and approved plans will promote the public health,

safety, convenience and welfare.

(3) That not only is it in the interest of the public health,

safety, convenience and welfare to eliminate existing

substandard areas of all types, but it is also in the

public interest and less costly to the community to

prevent the creation of new blighted areas or the

expansion of existing blighted areas; that vigorous

enforcement of municipal and State building

standards, sound planning of new community

facilities, public acquisition of dilapidated, obsolescent

buildings, and other municipal action can aid in

preventing the creation of new blighted areas or the

expansion of existing blighted areas; and that

rehabilitation, conservation, and reconditioning of

areas in accordance with sound and approved plans,

where, in the absence of such action, there is a clear

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and present danger that the area will become blighted,

will protect and promote the public health, safety,

convenience and welfare.

Id.5 In accordance with these findings and policies, the legislature authorized the

governing bodies of municipalities to create a separate body to act as a

“redevelopment commission,” N.C.G.S. § 160A-504(a), or to simply “undertake to

exercise such powers, duties, and responsibilities [of a redevelopment commission]

itself,” id. § 160A-505(a).6 These “public and essential governmental powers . . .

include all powers necessary or appropriate to carry out and effectuate the purposes

and provisions of this Article.” Id. § 160A-512. The legislature also enumerated a

nonexhaustive list of grants of authority under this Article:

(3) To act as agent of the State or federal government or

any of its instrumentalities or agencies for the public

purposes set out in this Article;

(4) To prepare or cause to be prepared and recommend

redevelopment plans to the governing body of the

5 Again, the legislature made a declaration of policy, providing that

it is hereby declared to be the policy of the State of North

Carolina to protect and promote the health, safety, and welfare

of the inhabitants of its urban areas by authorizing

redevelopment commissions to undertake nonresidential

redevelopment in accord with sound and approved plans and to

undertake the rehabilitation, conservation, and reconditioning

of areas where, in the absence of such action, there is a clear and

present danger that the area will become blighted.

N.C.G.S. § 160A-502.

6 A municipality may also “designate a housing authority created under the provisions

of Chapter 157 [Housing Authorities and Projects] to exercise the powers, duties, and

responsibilities of a redevelopment commission.” N.C.G.S. § 160A-505(a).

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municipality and to undertake and carry out

“redevelopment projects” within its area of operation;

....

(6) Within its area of operation, to purchase, obtain

options upon, acquire by gift, grant, devise, eminent

domain or otherwise, any real or personal property or

any interest therein, together with any improvements

thereon, necessary or incidental to a redevelopment

project, except that eminent domain may only be used

to take a blighted parcel; to hold, improve, clear or

prepare for redevelopment any such property, and

subject to the provisions of G.S. 160A-514, and with the

approval of the local governing body sell, exchange,

transfer, assign, subdivide, retain for its own use,

mortgage, pledge, hypothecate or otherwise encumber

or dispose of any real or personal property or any

interest therein, either as an entirety to a single

“redeveloper” or in parts to several redevelopers;

provided that the commission finds that the sale or

other transfer of any such part will not be prejudicial

to the sale of other parts of the redevelopment area, nor

in any other way prejudicial to the realization of the

redevelopment plan approved by the governing body;

to enter into contracts, either before or after the real

property that is the subject of the contract is acquired

by the Commission (although disposition of the

property is still subject to G.S. 160A-514), with

“redevelopers” of property containing covenants,

restrictions, and conditions regarding the use of such

property for residential, commercial, industrial,

recreational purposes or for public purposes in

accordance with the redevelopment plan and such

other covenants, restrictions and conditions as the

commission may deem necessary to prevent a

recurrence of blighted areas or to effectuate the

purposes of this Article; to make any of the covenants,

restrictions or conditions of the foregoing contracts

covenants running with the land, and to provide

appropriate remedies for any breach of any such

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covenants or conditions, including the right to

terminate such contracts and any interest in the

property created pursuant thereto; to borrow money

and issue bonds therefor and provide security for

bonds; to insure or provide for the insurance of any real

or personal property or operations of the commission

against any risks or hazards, including the power to

pay premiums on any such insurance; and to enter into

any contracts necessary to effectuate the purposes of

this Article;

....

(11) To make such expenditures as may be necessary to

carry out the purposes of this Article; and to make

expenditures from funds obtained from the federal

government[.]

Id. Plaintiff does not dispute that defendant’s purchase of the vacant property at 212

West Main Avenue and its lease of the property to the Art Guild in order to promote

the arts for the purpose of revitalizing the downtown area is a valid redevelopment

activity under the Urban Redevelopment Law.

Also relevant to the activity at issue here is Article 23, the “Municipal Service

District Act of 1973” (the Municipal Service District Act), N.C.G.S. §§ 160A-535 to -

544 (2017), which allows cities to establish “service districts in order to finance,

provide, or maintain for the districts one or more of the following services, facilities,

or functions in addition to or to a greater extent than those financed, provided or

maintained for the entire city,” id. § 160A-536(a). These services include “[d]owntown

revitalization projects,” id. § 160A-536(a)(2), which overlap with the activities

authorized by the Urban Redevelopment Law, and are defined as

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improvements, services, functions, promotions, and

developmental activities intended to further the public

health, safety, welfare, convenience, and economic well-

being of the central city or downtown area. Exercise of the

authority granted by this Article to undertake downtown

revitalization projects financed by a service district do not

prejudice a city’s authority to undertake urban renewal

projects in the same area. Examples of downtown

revitalization projects include by way of illustration but not

limitation all of the following:

....

(7) Sponsoring festivals and markets in the

downtown area, promoting business investment

in the downtown area, helping to coordinate

public and private actions in the downtown area,

and developing and issuing publications on the

downtown area.

Id. § 160A-536(b). Plaintiff argues in her brief that defendant’s activity here is not a

valid downtown revitalization project because it does not meet any of the “categories

of conduct” defined by the legislature in subsection 160A-536(b). We disagree, and

we conclude there is no genuine issue of material fact with respect to this issue.

Plaintiff neglects to mention that the “categories” enumerated in the statute are mere

examples and are explicitly nonexhaustive. See id. § 160A-536(b) (providing that

“[e]xamples of downtown revitalization projects include by way of illustration but not

limitation all of the following”). We conclude that the uncontroverted evidence

presented in the trial court establishes that defendant’s activity is a valid “service[ ],

function[ ], promotion[ ], [or] developmental activit[y] intended to further the public

health, safety, welfare, convenience, and economic well-being of the central city or

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downtown area.” Id. We further conclude that defendant’s activity falls under the

example in subdivision (7) in that defendant’s “Arts on Main” project is a cooperative

public and private initiative wherein a market is established to sell and promote the

arts in the downtown area.

In its analysis of the threshold inquiry, the Court of Appeals below briefly

mentioned the Municipal Service District Act before concluding that “[n]owhere has

the legislature deemed all downtown revitalization projects undertaken by a city

within a service district to be activities[ ] which are exempt from suit through

governmental immunity.” Meinck, ___ N.C. App. at ___, 798 S.E.2d at 421. This

portion of the court’s analysis, which notably omitted any mention of the Urban

Redevelopment Law, tends to suggest that a legislative provision that addresses a

particular activity but does not explicitly provide that such activity is a governmental

function immune from suit has no bearing on a determination of whether the activity

is governmental or proprietary. The inquiry, however, is not merely whether the

legislature has explicitly provided that a specific activity is governmental but rather,

“whether, and to what degree, the legislature has addressed the issue.” Williams, 366

N.C. at 200, 732 S.E.2d at 142 (emphasis added).

For example, in Williams, while we reserved comment on whether a statute at

issue there was “ultimately determinative in light of the facts at hand” and left that

determination to the trial court upon remand, we did note that the statute at issue

was, at a minimum, “clearly relevant” to whether the defendants’ activity was

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governmental or proprietary. Id. at 201, 732 S.E.2d at 142 (emphases omitted).

Furthermore, in arriving at our conclusion in Williams that the “threshold inquiry”

was the extent to which the legislature had addressed the issue, we discussed as an

example Evans, in which the Court “considered the Housing Authorities Law in

holding that a housing authority was protected by governmental immunity against

allegations of lead paint-based injuries.” Id. at 200, 732 S.E.2d at 141 (internal

citation omitted) (citing Evans, 359 N.C. at 55-56, 602 S.E.2d at 671-72). Notably,

the plaintiff in Evans argued that the defendant was not immune “because the

Housing Authorities Law does not specifically provide for immunity.” Evans, 359

N.C. at 54, 602 S.E.2d at 671 (emphasis added). We rejected that argument, noting

that

in enacting the Housing Authorities Law at issue, the

General Assembly provided

“that unsanitary or unsafe dwelling

accommodations exist in urban and rural

areas throughout the State . . .; that these

conditions cannot be remedied by the

ordinary operation of private enterprise; that

the . . . providing of safe and sanitary dwelling

accommodations for persons of low income are

public uses and purposes for which public

money may be spent and private property

acquired; . . . and that the necessity for the

provisions hereinafter enacted is hereby

declared as a matter of legislative

determination to be in the public interest.”

Id. at 55, 602 S.E.2d at 672 (alterations in original) (citing

N.C.G.S. § 157-2(a) (2003)). We considered the emphasized

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language a significant “statutory indication that the

provision of low and moderate income housing is a

governmental function.” Id.

Williams, 366 N.C. at 200, 732 S.E.2d at 141. Based on this “statutory indication,”

in conjunction with our prior case law interpreting the original Housing Authorities

Law, as well as the principle “that an ‘activity of the municipality which is . . . public

in nature and performed for the public good in behalf of the State . . . comes within

the class of governmental functions,’ ” Evans, 359 N.C. at 55-56, 602 S.E.2d at 671-

72 (alterations in original) (quoting Millar v. Town of Wilson, 222 N.C. 340, 341, 23

S.E.2d 42, 44 (1942)), we determined that the defendant in Evans was entitled to

governmental immunity on the facts of that case, id. at 56, 602 S.E.2d at 672. Thus,

even when the legislature “has not directly resolved whether a specific activity is

governmental or proprietary in nature,” Williams, 366 N.C. at 202, 732 S.E.2d at 142,

a legislative provision addressing the activity may still be relevant—in conjunction

with the other Williams factors—to a determination of whether an activity is

governmental, particularly if the statutory language suggests “a significant ‘statutory

indication’ that the [activity] is a governmental function,” id. at 200, 732 S.E.2d at

141 (quoting Evans, 359 N.C. at 55, 602 S.E.2d at 672).

In that regard, we note that certain language from the Urban Redevelopment

Law is similar in significant respects to the emphasized language from the Housing

Authorities Law in Evans. Compare N.C.G.S. § 160A-501 (providing that “the public

purposes of acquiring and replanning [blighted] areas and of holding or disposing of

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them in such manner that they shall become available for economically and socially

sound redevelopment . . . . are hereby declared to be public uses for which public

money may be spent” (emphasis added)), with Evans, 359 N.C. at 55, 602 S.E.2d at

672 (“[T]he . . . providing of safe and sanitary dwelling accommodations for persons

of low income are public uses and purposes for which public money may be spent and

private property acquired . . . .” (first ellipsis in original) (quoting N.C.G.S. § 157-2(a)

(2003) (emphasis added))). Moreover, in both enactments the legislature recognized

a serious problem that could not be adequately remedied by private enterprise alone.

Compare N.C.G.S. § 160A-501(4) (providing that “the foregoing conditions are beyond

remedy or control entirely by regulatory processes in the exercise of the police power

and cannot be effectively dealt with by private enterprise under existing law without

the additional aids herein granted”), with Evans, 359 N.C. at 55, 602 S.E.2d at 672

(“[T]hese conditions cannot be remedied by the ordinary operation of private

enterprise . . . .” (quoting N.C.G.S. § 157-2(a))). Additionally, both the Urban

Redevelopment Law and the Municipal Service District Act establish that downtown

revitalization is—like the provision of low and moderate income housing under the

Housing Authorities Law—in the public interest. Compare N.C.G.S. § 160A-502(3)

(providing that “not only is it in the interest of the public health, safety, convenience

and welfare to eliminate existing substandard areas of all types, but it is also in the

public interest and less costly to the community to prevent the creation of new

blighted areas or the expansion of existing blighted areas”), and id. § 160A-536(b)

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(providing that “ ‘downtown revitalization projects’ are improvements, services,

functions, promotions, and developmental activities intended to further the public

health, safety, welfare, convenience, and economic well-being of the central city or

downtown area”), with Evans, 359 N.C. at 55, 602 S.E.2d at 672 (“[T]he necessity for

the provisions hereinafter enacted is hereby declared as a matter of legislative

determination to be in the public interest.” (quoting N.C.G.S. § 157-2(a))). 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 and for the purpose of “promot[ing] the

health, safety, and welfare of the inhabitants” of the State of North Carolina is a

governmental function. N.C.G.S. § 160A-501; see Williams, 366 N.C. at 200, 732

S.E.2d at 141 (explaining that a municipality is “an agency of the sovereign” and

engaged in a governmental function when it “is acting ‘in behalf of the State’ in

promoting or protecting the health, safety, security, or general welfare of its citizens”

(quoting Britt, 236 N.C. at 450, 73 S.E.2d at 293)).

Nonetheless, as the Court of Appeals correctly recognized, the legislature has

not deemed all urban redevelopment and downtown revitalization projects

governmental functions that are immune from suit. Moreover, in Williams we

recognized that even when the legislature has designated a general activity to be “a

governmental function by statute, the question remains whether the specific [activity

at issue], in this case and under these circumstances, is a governmental function.”

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366 N.C. at 201, 732 S.E.2d at 142 (citation omitted). Thus, while the applicable

statutory provisions are “clearly relevant,” we conclude that the legislature has not

“directly resolved” whether defendant’s lease of 212 West Main Avenue to the Art

Guild as part of its downtown revitalization efforts “is governmental or proprietary

in nature,” thus requiring us to examine “other factors [that] are relevant.” Id. at

201-02, 732 S.E.2d at 142 (emphasis omitted).

The first of these additional factors inquires “if the undertaking is one in which

only a governmental agency could engage,” in which event “it is perforce

governmental in nature.” Id. at 202, 732 S.E.2d at 142 (emphasis omitted). Relevant

to this consideration, although not dispositive, are the legislature’s statements

regarding the “economic or social liabilities” caused by “blighted areas,” specifically

“[t]hat the foregoing conditions are beyond remedy or control entirely by regulatory

processes in the exercise of the police power and cannot be effectively dealt with by

private enterprise under existing law without the additional aids herein granted.”

N.C.G.S. § 160A-501(1), (2), (4) (emphasis added). Assuredly, this legislative finding

does not preclude private entities from engaging in redevelopment projects and

downtown revitalization activities, and a private entity could conceivably engage in

the same activity as defendant did here. Thus, we cannot conclude that this

legislative pronouncement is dispositive; that is, it does not render defendant’s

leasing of the property to the Art Guild in order to promote the arts for the purpose

of urban redevelopment and downtown revitalization an “undertaking . . . in which

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only a governmental agency could engage.” Williams, 366 N.C. at 202, 732 S.E.2d at

142 (second emphasis added). Nonetheless, we find the legislative determination that

the purposes of urban redevelopment can be accomplished only when governmental

agencies engage in such activities to be a relevant consideration under this factor, as

well as another statutory indication that an activity undertaken for urban

redevelopment and to promote the public interest is governmental in nature.

Because the particular activity here can be performed both publicly and

privately, we consider “a number of additional factors,” including “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.” Id. at 202-03, 732

S.E.2d at 143 (footnotes omitted). Defendant argues that maintaining a historic and

vacant building and leasing it to a nonprofit art guild is an undertaking that is not

traditionally provided by an entity other than a governmental agency or

instrumentality. Yet, defendant has not pointed to any evidence or authority, nor are

we aware of any, that supports this assertion.

We have evidence, however, of the fees charged and the costs incurred by

defendant. Here the lease sets rental rates for the Art Guild’s subtenants in a range

of not more than $90.00 to $375.00 per month, of which 90% is paid to defendant.

Furthermore, defendant receives 15% of all sales or commissions under the lease, and

subtenants are required to provide additional consideration in the form of volunteer

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time, with a minimum of fifteen hours per month. For the 2013 fiscal year,

defendant’s revenues from the rent and sales or commissions amounted to

$21.572.98. Defendant’s expenditures for that year totaled $33,062.01, with the city’s

electric charges alone totaling $26,547.34. Thus, defendant netted a loss of

$11,489.03 that year. Defendant’s loss for the 2014 fiscal year was even greater, with

defendant’s revenues amounting to $21,935.57 and its expenditures totaling

$40,008.13, netting defendant a loss of $18,072.56. In addition, Munn testified that

defendant spent money on labor and overhead but did not include those items in its

financial spreadsheet. Despite these losses, plaintiff asserts that defendant received

“financial gain” and that defendant’s financial spreadsheet reflects a “budget

surplus,” referring to the fact that defendant spent less than was budgeted for Arts

on Main. But this “surplus” reflected in the spreadsheet would, if anything,

seemingly support defendant’s position because it demonstrates that defendant had

budgeted for, and prepared to suffer, losses even greater than the considerable loss it

actually incurred. As Munn testified, the city did not seek to make a profit from the

lease with the Art Guild and “there’s no profit in this operation.” We conclude that

the revenues received by defendant under the lease are not “substantial,” particularly

because such revenues were not designed even to “simply cover the operating costs of

the service provider,” nor did they do so in reality.7 Id. at 202-03, 732 S.E.2d at 143.

In reaching a different conclusion with respect to the revenues received by defendant,

7

the Court of Appeals relied on Glenn v. City of Raleigh. In Glenn, which considerably

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Recognizing that the additional factors listed in Williams are not exhaustive,

id. at 203, 732 S.E.2d at 143 (“[T]he distinctions between proprietary and

governmental are fluid . . . . We therefore caution against overreliance on these four

factors.”), we also consider as relevant the particular and decidedly noncommercial

nature of defendant’s undertaking here. Art occupies a unique role in our society and

our state, as evidenced by the legislature’s tasking the Department of Natural and

Cultural Resources in Chapter 143, Article 47 (Promotion of Arts), with various duties

connected with promoting the arts in this state, including “[a]ssist[ing] local

organizations and the community at large with needs, resources and opportunities in

the arts” and “[a]ssist[ing] in bringing the highest obtainable quality in the arts to

predates our decision in Williams, the plaintiff was injured by a rock launched from a lawn

mower being operated at Pullen Park, which was maintained by the defendant. Id. at 470-

71, 98 S.E.2d at 914. It appears that the majority in Glenn, in reviewing the trial court’s

denial of a motion for nonsuit on the basis of governmental immunity, did not consider the

defendant’s evidence of the costs incurred in maintaining the park. Id. at 477, 98 S.E.2d at

919 (“Considering plaintiff’s evidence in the light most favorable to him, and disregarding

defendant’s evidence which tends to establish another and a different state of facts, or which

tends to impeach or contradict his evidence, which we are required to do on the motion for

judgment of nonsuit, it is our opinion that the net revenue of $18,531.14 for the fiscal year 1

July 1952 to 30 June 1953 received by the city of Raleigh from the operation of Pullen Park

for that period, which was used by the city for the capital maintenance of the park area,

building items, paying salaries, buying fuel, etc., (the evidence that the $18,531.14 was spent

in the amusement area only is the defendant’s evidence), was such as to remove it, for the

purposes of the consideration of a motion for judgment of nonsuit, from the category of

incidental income, and to import such a corporate benefit or pecuniary profit or pecuniary

advantage to the city of Raleigh as to exclude the application of governmental immunity.”

(citations omitted)). Whether or not the majority’s decision to limit its review in this manner

was procedurally correct, that is not the situation here, in which the trial court properly

considered both parties’ evidence on the motion for summary judgment—including

defendant’s evidence both of its revenue received and its costs incurred—in order to

determine if there was a genuine issue of material fact.

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the State; promot[ing] the maximum opportunity for the people to experience, enjoy,

and profit from those arts.” N.C.G.S. § 143-406(2), (5) (2017).8 Defendant’s

undertaking to promote the arts by bringing individual, local artists into the

downtown area furthers these aims, which in turn dovetail with the overall goal of

revitalizing the downtown area.

Plaintiff does not actually dispute that defendant’s lease with the Art Guild for

the purpose of promoting the arts was an earnest effort at redeveloping and

revitalizing its downtown area or that defendant did not seek or obtain any profit

from this activity. Rather, the thrust of plaintiff’s argument is that case law dictates

that the “lease of government property to third parties” is a proprietary function.

This broad proposition is not supported by plaintiff’s proffered authorities, none of

which are binding on this Court. To the extent plaintiff relies upon this Court’s

decision in Aaser v. City of Charlotte, in which the Court held the activities at issue

were proprietary, that case is easily distinguished. 265 N.C. 494, 144 S.E.2d 610

(1965). There we determined that “the holding of exhibitions and athletic events” at

the defendant’s hockey arena was “to produce revenue and [was] for the private

advantage of the compact community,” and therefore, the defendant was “engaging

8 The legislature also created the North Carolina Arts Council to assist the

Department in this function, providing that the Council is to, inter alia, “advise the Secretary

[of Natural and Cultural Resources] concerning assistance to local organizations and the

community at large in the area of the arts” and “advise the Secretary in regard to bringing

the highest obtainable quality in the arts to the State and promoting the maximum

opportunity for the people to experience and enjoy those arts.” N.C.G.S. § 143B-87(2), (5)

(2017).

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in a proprietary function when it operates such an arena, or leases it to the promoter

of an athletic event, and when it operates refreshment stands in the corridors of the

building for the sale of drinks and other items to the patrons of such an event.” Id.

at 497, 144 S.E.2d at 613 (citations omitted). Unlike here, the operation and leasing

of the hockey arena was not an effort at revitalizing the defendant’s downtown area,

nor were there any relevant statutes indicating that the defendant’s activity was

governmental in nature, nor was there any discussion of the fees charged and

whether they covered the defendant’s operating costs. Furthermore, plaintiff’s

proposition would be contrary to our mandate that “the proper designation of a

particular action of a county or municipality is a fact intensive inquiry . . . and may

differ from case to case.” Williams, 366 N.C. at 203, 732 S.E.2d at 143.

After careful consideration of all the factors set forth in Williams, we conclude

that—in light of the statutory indications that urban redevelopment activities

undertaken to promote the health, safety, and welfare of North Carolina citizens are

governmental functions, and the legislative determination that urban blight “cannot

be effectively dealt with by private enterprise” alone, as well as the uncontroverted

evidence: that defendant’s lease of the historic property to the nonprofit Art Guild in

order to promote the arts in the downtown area was a valid urban redevelopment and

downtown revitalization activity; that defendant did not seek to make a profit; and

that the fees charged by defendant were not substantial and did not cover its

operating costs—defendant’s activity here in leasing the property to the Art Guild so

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as to promote the arts for the purpose of redeveloping and revitalizing the downtown

area was a governmental function. Our decision should not be construed as holding

that every urban redevelopment activity is a governmental function or even that

every lease of historic property to a nonprofit arts group for the purpose of promoting

the arts is a governmental function. Urban redevelopment and downtown

revitalization activities defy straightforward definition, and such projects could

seemingly cast a wide net encompassing a number of local government endeavors,

many of which may be more commercial in nature or less geared towards remedying

blighted areas and promoting the public interest than defendant’s cooperative

enterprise here with the Art Guild. We again emphasize that “the proper designation

of a particular action of a county or municipality is a fact intensive inquiry . . . and

may differ from case to case.” Id. at 203, 732 S.E.2d at 143; see also id. at 203, 732

S.E.2d at 143 (“[I]t does not follow that a particular activity will be denoted a

governmental function even though previous cases have held the identical activity to

be of such a public necessity that the expenditure of funds in connection with it was

for a public purpose.” (quoting Sides v. Cabarrus Mem’l Hosp., Inc., 287 N.C. 14, 22,

213 S.E.2d 297, 302 (1975) (emphasis omitted))). Because we conclude that the trial

court correctly determined that defendant was engaged in a governmental function,

we reverse the decision of the Court of Appeals. 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

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governmental immunity by purchasing liability insurance. We remand this case to

the Court of Appeals to address that issue.

As a final matter, this Court allowed discretionary review of an issue raised by

both parties—whether the Court of Appeals correctly determined that defendant is

not entitled to summary judgment as a matter of law on the issue of plaintiff’s

contributory negligence. As to this issue, we hold that discretionary review was

improvidently allowed.

REVERSED AND REMANDED; DISCRETIONARY REVIEW

IMPROVIDENTLY ALLOWED IN PART.

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