Wrongful death case hinges on immunity

March 25--A complex issue of government immunity must be resolved as two sides are locked in a multi-year lawsuit prompted by the fall and eventual death of a Wilson County man.

A local woman and Wilson County government are awaiting word from the N.C. Supreme Court on whether a lawsuit filed against Wilson County will be allowed to be argued in local court or thrown out. Attorneys on both sides argued before the state's top court earlier this month, part of the long, winding path the lawsuit has taken.

Lois Edmondson Bynum sued the county after her husband, Earl Bynum, fell face down in front of Wilson County'sMiller Road building in April 2008. Bynum's fall occurred as he was leaving the building after he paid his water bill. Bynum's injuries were debilitating and he later died.

Attorneys for Wilson County argue the county cannot be sued because it is protected by governmental immunity.

Attorneys for Bynum argue Wilson County was selling water to Bynum when he fell and was not acting as a government, but rather as a business.

They also argued Wilson County waived immunity when they purchased insurance to pay for injuries.

The lawsuit can't move forward or come to an end until a decision of Wilson County's function in this particular case can be decided. Both sides have argued their points through the court system for years. Lower courts and the N.C. Court of Appeals found that Bynum did have a right to sue Wilson County.

Since there are no federal constitutional questions in this case, the N.C. Supreme Court's decision is expected to be final.

GOVERNMENT OR BUSINESS

The question before the N.C. Supreme Court is whether Wilson County was acting as a government and should be protected from the lawsuit. Or were they acting as a business in a proprietary capacity, in which case they aren't protected from lawsuits.

County attorney Robert T. Numbers from Womble, Carlyle Sandridge and Rice argued before the N.C. Supreme Court that maintenance, inspections and zoning of the county building is a function given to the county for the public good by the General Assembly. He concluded since Earl Bynum fell on the steps, which is to be maintained by the county, it makes this situation governmental and immune to lawsuits.

"Wilson County's statutory obligations to engage in inspection and maintenance of governmental property demonstrate that these acts are performed for the public good and are governmental in nature," attorneys for the county argued.

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 Wilson County does not have immunity in this case and there is a way to examine if a person can sue when they are at a government building for both governmental and business reasons.

Attorneys for Bynum are Ben Eagles of Narron and Holdford and Allen Thomas and Kurt Schmidt of Thomas and Farris.

"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 Wilson County ... do not apply here," Thomas argued in his brief.

Attorneys for Bynum also cited the North Carolina Court of Appeals summary in their brief to the Supreme Court to argue the county was doing business when they sold Bynum water.

"As a result of the fact that the operation of a water system is a proprietary rather than a governmental function, the fact that Mr. Bynum was lawfully on the premises in question for the purposes of paying his water bill, and the fact that Mr. Bynum allegedly sustained injuries as the result of negligence on the part of Wilson County as he left the building after paying his water bill, we conclude that defendant Wilson County is not entitled to entry of judgment in its favor based on defense of governmental immunity."

Thomas said there is no doubt that Wilson County provided water to its residents for profit.

"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 Court of Appeals opinion and the matter should be remanded to the trial court with instructions to enter summary judgment in Wilson County's favor.

"For over 125 years, the law in North Carolina was that the question of whether a government's action was governmental or proprietary in nature focused on the governmental action which caused the plaintiff's injury. The Court of Appeal's opinion in Bynum rejected this test and substituted a test based on the nature of the plaintiff's relationship with the government and the plaintiffs reason for interacting with the government."

LAW PROFESSORS

Law professors Irvin Joyner of North Carolina Central University and Trey Allen of the UNC School of Government said cases like the Bynum case are not so easy to decide.

"Government immunity comes from the law from England that was adopted here in the United States that says 'The King is never wrong,'" Joyner explained. "So with that in mind, in all situations the government is immune. So, government activities are immune to being sued unless they give permission to be sued."

Joyner said in the case of the United States, there are 50 kings and with the federal government there is another.

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, "North Carolina Supreme Court Williams vs. Pasquotank gave as a framework to make those decisions," Allen explained. "Is there a statute that classifies the activity as governmental or proprietary? If not, then look as if it is an activity that can only be done by government. If so, then it is government and immunity applies."

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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