Wrongful death case hinges on immunity
By Janet Conner-Knox, The Wilson Daily Times, N.C. | |
McClatchy-Tribune Information Services |
A local woman and
Attorneys for
Attorneys for Bynum argue
They also argued
The lawsuit can't move forward or come to an end until a decision of
Since there are no federal constitutional questions in this case, the
GOVERNMENT OR BUSINESS
The question before the
County attorney
"
Numbers said that the Bynum case proves that the county is obligated to inspect and maintain county property.
"Statutes at issue in Bynum therefore do much more than merely set forth a policy toward the 'encouragement' of maintaining and inspecting county property. Instead, the statute require or create an obligation to do so. As a result, the statutes 'leave little room for doubt' as to whether the inspection and maintenance of county property is governmental function. In fact, the statutory language compels the conclusion that these functions are governmental in nature."
Numbers also stated a person coming out of the same governmental building for different reasons could fall on the same steps, but in one instance would be entitled to sue and the other instance not be able to sue.
Attorneys for Bynum argued that
Attorneys for Bynum are
"If someone were on government property for multiple purposes, for example voting, and attending an ice hockey game, the test would include whether the governmental function clearly ended and only the proprietary function remained. The court would have to look at whether there was a clear break in activity by both sides. In the instance case, however, there is only a single purpose on the part of both parties -- paying and collecting for proprietary water services. The facts imagined and scenarios presented in the briefs of
Attorneys for Bynum also cited the
"As a result of the fact that the operation of a water system is a proprietary rather than a governmental function, the fact that
Thomas said there is no doubt that
"Additionally, this court has long held that a municipality selling water for profit consumption will be treated like a privately owned company," Thomas argued in his brief answering the county.
Numbers responded in a follow-up brief the court should vacate the
"For over 125 years, the law in
LAW PROFESSORS
Law professors
"Government immunity comes from the law from
Joyner said in the case of
Joyner said the immunity law is set up in a way where government is protected even when someone is hurt.
"Let's take for example a bridge over a waterway -- a chunk of brick falls off and injures a person. The government is not liable because the bridge was built for the common good of the community," Joyner said.
Allen said the government gives permission to be sued when they purchase insurance.
"If the local government has purchased liability insurance they waive immunity through the purchase to the extent of coverage," Allen said.
In the case where there is insurance, the suit can't go beyond what the government is insured for, Joyner said.
"The waiver is limited by what the insurance can cover," Joyner said. "Insurance does not cover everything. The exemption applies only to the scope to the waiver in the policy."
Because this kind of case is so difficult, "
All factors have to be considered, Allen said.
"One of those factors boils down to if it is revenue raising?" Allen said. "Do they make a profit from the activity? The more money the activity makes, the more likely it is to be a business."
Allen said the disagreement in the Bynum case is what activity should the court be looking at.
"Should they look at purchasing water utility or what activity led to the injury?" Allen said. "County maintenance is a government function."
Joyner said when people are hurt they expect those who are responsible to pay.
"Part of the continuing debate is what is it that the people -- which is the government -- ought to be responsible for?" Joyner said. "It is important when the government takes on more responsibility for those lawsuits."
Joyner said there are policy issues on both sides that can be argued. Does it restrain what the government will do because they open themselves up to liability?
"The pot is only as large as the citizens' wallets," Joyner said. "Citizens can say be responsible for everything. That means they have to pay."
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