             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                No. COA14-1340

                            Filed: 15 September 2015

Harnett County, 13 CVS 02242

ERICA K. PARKER, Individually, as Administrator of the ESTATE OF CULLEN
REECE PARKER, and A. TRENT PARKER, Plaintiffs,

            v.

TOWN OF ERWIN, MARK BYRD, Erwin Public Works Department, in his individual
and official capacity, WARREN M. MORRISETTE, former Erwin Chief of Police, in
his individual and official capacity, BRYAN THOMPSON, former Erwin Town
Manager, in his individual and official capacity, ERWIN AREA CHAMBER OF
COMMERCE, ERWIN PARKING CENTER, INC., TIMOTHY C. MORRIS, JAMES
DARRYL WEST, TAMMY RENEE WEST, AMERICAN MOBILE HOME SUPPLY,
INC., ERWIN FIRE DEPARTMENT AND RESCUE SQUAD, INC. (d/b/a Erwin Fire
& Rescue Department), HARNETT COUNTY EMS, RICKY DENNING, EMS
Division Chief, in his individual and official capacity, HARNETT COUNTY
ENHANCED 911 CENTER, and L. JOHNSON, 911 Center Unit Operator #0754, in
her individual and official capacity, Defendants.


      Appeal by Defendants Town of Erwin, Mark Byrd, Warren M. Morrisette, and

Bryan Thompson from order entered 20 August 2014 by Judge Thomas H. Lock in

Superior Court, Harnett County, and cross-appeal by Plaintiffs from amended order

entered 30 September 2014 by Judge Thomas H. Lock in Superior Court, Harnett

County. Heard in the Court of Appeals 20 April 2015.


      The Law Offices of F. Bryan Brice, Jr., by Matthew D. Quinn and Catherine
      Cralle Jones, for Plaintiffs–Appellees/Cross-Appellants.

      Teague, Campbell, Dennis & Gorham, L.L.P., by Bryan T. Simpson and
      Natalia K. Isenberg, for Defendants–Appellants/Cross-Appellees Town of
      Erwin, Mark Byrd, Warren M. Morrisette, and Bryan Thompson.

      Brown, Crump, Vanore & Tierney, L.L.P., by O. Craig Tierney, Jr. and Michael
      W. Washburn, for Defendant–Appellee Timothy C. Morris.
                              PARKER V. TOWN OF ERWIN

                                   Opinion of the Court




      McGEE, Chief Judge.


      Town of Erwin (“the Town”), Mark Byrd, individually and in his official

capacity as the director of the Erwin Public Works Department (“Mr. Byrd”), Warren

M. Morrisette, individually and in his official capacity as the former Chief of Police of

the Town (“Mr. Morrisette”), and Bryan Thompson, individually and in his official

capacity as the former Town Manager (“Mr. Thompson”) (collectively “Town

Defendants”) appeal from the trial court’s order denying their N.C. Gen. Stat. § 1A-1,

Rules 12(b)(2) and (b)(6) motions to dismiss the complaint filed by Erika K. Parker

(“Mrs. Parker”), individually and as administrator of the estate of her son Cullen

Reece Parker (“Cullen”) and A. Trent Parker (“Mr. Parker”) (collectively “Plaintiffs”).

Plaintiffs cross-appeal from the trial court’s amended order dismissing with prejudice

Plaintiffs’ complaint as to Timothy C. Morris (“Mr. Morris”).

      With respect to Town Defendants’ appeal and the trial court’s denial of Town

Defendants’ Rule 12(b)(2) motions to dismiss Plaintiffs’ claim that Town Defendants

negligently breached their duty of care to ensure the safety of residents and visitors

to the 2011 Erwin Christmas parade, we reverse the trial court’s denial of Town

Defendants’ motions on the grounds that this claim is barred by sovereign immunity.

With respect to Town Defendants’ appeal and the trial court’s denial of Town

Defendants’ Rule 12(b)(2) motions to dismiss Plaintiffs’ claim that Town Defendants

violated N.C. Gen. Stat. § 160A-296(a), we remand this matter for further proceedings

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consistent with this opinion. With respect to Plaintiffs’ cross-appeal and the trial

court’s order granting Mr. Morris’s Rule 12(b)(6) motion to dismiss Plaintiffs’

complaint as to Mr. Morris, we affirm the trial court’s order.

                         I.    Facts and Procedural History

      The evidence in the record tends to show that a Christmas parade was held in

Erwin, North Carolina, on 5 December 2011. The official parade route covered seven

blocks and formed a horseshoe shape. The route ran east to west for three blocks

along Denim Drive, south to north for one block along South 13th Street, and west to

east for three blocks along East H Street. Denim Drive and East H Street run parallel

to each other, and the parade crossed South 11th Street and South 12th Street, and

began and ended at the intersection of South 10th Street. Barricades restricted

vehicular traffic along the principal parade route, but traffic ingress and egress was

permitted for a publicly-accessible, privately-owned parking lot (“the parking lot”),

which was bordered by East H Street to the north, South 12th Street to the east,

Denim Drive to the south, and South 13th Street to the west.

      Mrs. Parker and her sons, almost-four-year-old Cullen and his older brother

Colby Parker (“Colby”) (collectively “the Parkers”), traveled to Erwin to participate in

and view the parade.     Mrs. Parker left Colby with his school choir, which was

participating in the parade, and she and Cullen watched the parade with a small

group of family and friends (“the group”) from a viewing area on the sidewalk along



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the north side of Denim Drive to the west of its intersection with South 12th Street

(“the viewing area”). After Colby’s choir passed the viewing area, Mrs. Parker left

Cullen with his grandmother, walked to the area where Colby’s choir was disbanding,

and returned with Colby to the viewing area to watch the remainder of the parade

with the group.

      When the last participants of the parade passed the viewing area, the group

began walking to Tubby’s, a nearby restaurant (“the restaurant”), which was located

at the southwest corner of East H Street and South 12th Street, and was northeast

of the viewing area from where the group watched the parade. The group, consisting

of the Parkers and four other people, walked in a northeast direction across the

parking lot before proceeding north along South 12th Street. The group then walked

in front of a building owned by Mr. Morris. Between Mr. Morris’s building and the

rear of the restaurant, there is a privately-owned alley (“the alley”) that allows

ingress and egress onto South 12th Street, to and from the parking lot through which

the group had walked.

      The group stopped walking at the south side of the alley, just past Mr. Morris’s

building, and waited to cross the alley as a car exited the parking lot onto South 12th

Street.   The group then proceeded to walk north across the alley towards the

restaurant. Just as most of the group cleared the alley, Mrs. Parker heard Colby

scream at Cullen to “get out of the way.” Mrs. Parker and the other members of the



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group then saw a car strike Cullen with its front left bumper. The driver reported

that she did not see Cullen before hitting him with her vehicle. It was after 8:00 p.m.,

the sun had set at 5:01 p.m., and the alley was not illuminated by street lights, by

lighting from the rear of the retail spaces including the restaurant, or by lighting

from Mr. Morris’s building.

      After the witnesses alerted the driver that Cullen was under her vehicle, she

backed up, “freeing Cullen from underneath the front driver’s side wheel and leaving

him conscious but severely injured.” A Harnett County Sheriff’s officer came upon

the scene and alerted another officer, who reported the incident. The first 911 report

was placed at 8:27 p.m. and emergency responders, including Erwin Fire & Rescue

Department, Coats Fire & Rescue, and Harnett County EMS, were dispatched a

minute later. However, the emergency responders were dispatched to North 12th

Street, which was at least two blocks north of the incident site. Due to this confusion,

the first EMS unit to arrive on scene — which was not among the first units

dispatched — did not arrive at the incident site until fourteen minutes after the

incident was reported.      Although Cullen was “initially conscious, crying and

responsive,” at 8:34 p.m., he was reported to have become “unresponsive.”           The

emergency responders requested a pediatric multi-system trauma medical air

transport to Betsy Johnson Regional Hospital in Dunn, North Carolina, but this air

transport did not arrive. Cullen was taken by ambulance to Betsy Johnson Regional



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Hospital, where emergency department personnel rendered treatment until

approximately 9:45 p.m., when Cullen was pronounced dead as a result of the injuries

he sustained.

       Plaintiffs filed a complaint in December 2013 against Town Defendants, Mr.

Morris, Erwin Area Chamber of Commerce (“the Chamber”), as well as the owners of

the restaurant, the parking lot, the retail space adjoining the restaurant (collectively

“the property owners”), and various emergency medical service providers and

emergency responders. The woman who struck Cullen with her vehicle was not

named as a party in Plaintiffs’ complaint.         Plaintiffs asserted several claims of

negligence and negligence per se against Town Defendants and the Chamber, a claim

of negligence against the property owners, claims of negligence against various

emergency medical service providers and emergency responders, and a claim of

negligent infliction of emotional distress against all of the named defendants.

       In their complaint, Plaintiffs alleged, in relevant part, that Town Defendants

and the Chamber “worked together to plan and sponsor the event” and, in doing so,

that they collectively failed to:

              a)     Prevent vehicle ingress and egress from parking
                     areas inside the parade route prior to, during and
                     immediately after the parade. In particular, there
                     were no barricades restricting traffic from entering
                     or exiting the [parking] lot on South 12th Street, no
                     police or safety personnel assisting pedestrians and
                     drivers leaving the parade area at a specific
                     ingress/egress point within the parade route;


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             b)     Provide safe walking paths for pedestrians to access
                    and exit the parade route. In particular, there was
                    no marked pedestrian walkway from Denim Drive to
                    East H Street, and there was no police or public
                    safety presence directing or preventing traffic flow
                    along South 12th Street;

             c)     Provide adequate police presence to manage public
                    safety at the event. For example, there was a single
                    Erwin Police Car positioned across from the
                    [parking] lot exit on South 12th Street. However,
                    the car was unmanned with no officer providing
                    traffic control or pedestrian support in that area.
                    The presence of the unmanned car presented a false
                    and misleading impression of safety to the public;
                    [and]

             d)     Test and ensure proper function of street lights
                    inside, along and surrounding the parade route. For
                    example, the public street light on South 12th
                    Street, located directly in front of [Mr. Morris’s
                    building], was not lit[.]

Plaintiffs also alleged the Town had purchased liability insurance that was in effect

on the dates relating to the claims alleged, and that by purchasing liability insurance,

Town Defendants “ha[d] waived any defense of immunity from suit pursuant to N.C.

Gen. Stat. § 160A-485(a), et seq.” In the alternative, Plaintiffs alleged that “the

tortious acts and omissions alleged . . . arose in the course of proprietary or private

activities by [Town Defendants].” Plaintiffs further alleged that “[t]he sponsoring,

organizing, publicizing and carrying out of the logistics of the Christmas Parade by

[the Town] and [the Chamber we]re proprietary activities, engaged in for the private



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advantage and commercial gain of the local Erwin community members and

businesses,” and “[a]lternatively, [the Town] entered into a joint enterprise or joint

venture with [the Chamber] to sponsor, organize, promote and carry out the

2011 Christmas Parade.”        Plaintiffs also alleged that, by not submitting an

application for a permit, Town Defendants and the Chamber violated §§ 6-2021 and

6-2023 of Part 6, Chapter 2, Article C of the Town’s ordinances, and breached the

duties owed to Plaintiffs “by failing to apply for, obtain, and carry a permit pursuant

to the Town Ordinance and by failing to require that a permit be obtained in order to

ensure that the parade met the standards for a parade set forth in the Town

Ordinance.” Plaintiffs also alleged that the Town breached its statutory duty to “keep

streets, sidewalks[,] and alleys in proper repair, in a reasonably safe condition and

free from unnecessary obstructions” in accordance with N.C. Gen. Stat.

§ 160A-296(a)(2), (4)–(5), and (7). With respect to Mr. Morris, Plaintiffs alleged that

he “failed to maintain functioning lights on his building to light the alley, thus

restricting visibility for the driver who struck Cullen.”

      Town Defendants moved to dismiss Plaintiffs’ complaint pursuant to N.C. Gen.

Stat. § 1A-1, Rules 12(b)(2) and (b)(6), asserting that Plaintiffs lacked personal

jurisdiction over Town Defendants on the basis of sovereign immunity, and failed to

state a claim against Town Defendants upon which relief could be granted on the

basis of public official immunity and the public duty doctrine. When they filed their



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motions to dismiss, Town Defendants also filed affidavits from Mr. Thompson and

from the Town’s finance director.       They also filed an affidavit from the senior

underwriting manager of the Town’s insurance company, which affidavit consisted of

the insurance policy — in its entirety — that was issued to the Town for the policy

period of 1 July 2011 to 1 July 2012.

      Upon Plaintiffs’ amended motion, the trial court entered an order on 30 April

2014 continuing the hearing on Town Defendants’ motions to dismiss and allowing

discovery served on Town Defendants “limited in scope to only those issues raised in

[Town Defendants’] Rule 12(b)(2) Motion[s] to Dismiss for lack of personal jurisdiction

on the basis of sovereign immunity and public official immunity.” The trial court

further ordered that the parties reserved the right to depose or serve discovery on

Town Defendants and on the affiants in support of Town Defendants’ motions to

dismiss “on other topics should [Town Defendants’] Motions to Dismiss be denied[.]”

      Mr. Morris filed an amended answer to Plaintiffs’ complaint in which he

alleged several defenses.    Mr. Morris also moved to dismiss the claims brought

against him pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) on the grounds that he

had no duty to “provid[e] illumination to adjacent property and that no active or

passive conduct alleged to have been attributable to [Mr. Morris] was legally

causative of any injuries to the Plaintiff individually or as administrator of the estate

of the decedent either for claims of negligence[.]”



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      The respective motions to dismiss by Mr. Morris and Town Defendants were

heard on 21 July 2014. In addition to the pleadings and affidavits previously filed,

Town Defendants presented the following additional discovery materials to the trial

court for consideration with respect to their motions to dismiss pursuant to N.C. Gen.

Stat. § 1A-1, Rule 12(b)(2):    (1) verified responses of each Town Defendant to

Plaintiffs’ first set of interrogatories regarding sovereign immunity; (2) responses of

the Chamber to Plaintiffs’ first set of interrogatories; (3) responses of the Town to

Plaintiffs’ first requests for admissions regarding sovereign immunity; (4) responses

of each Town Defendant to Plaintiffs’ first requests for production of documents

regarding sovereign immunity; (5) almost 300 documents produced by the Town; and

(6) the Rule 30(b)(6) deposition of the Town’s designated representative and

accompanying exhibits in support of said deposition.         Plaintiffs presented the

following discovery materials to the trial court for consideration with respect to Town

Defendants’ motions to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(2):

(1) an affidavit from an expert on risk management and safety for municipal parades;

(2) an affidavit and accompanying exhibits in support of said affidavit from Mrs.

Parker; (3) an affidavit and accompanying exhibits in support of said affidavit from

Mr. Parker; and (4) almost 200 pages of documents produced by the Chamber.

      In accordance with Town Defendants’ request that the trial court enter

findings of fact and conclusions of law in accordance with N.C. Gen. Stat. § 1A-1,



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Rule 52(a)(2), in an order entered 20 August 2014, the trial court made the following

findings regarding Town Defendants’ motions to dismiss pursuant to N.C. Gen. Stat.

§ 1A-1, Rule 12(b)(2) for lack of personal jurisdiction on the basis of sovereign

immunity:

             2.     Among other claims, Plaintiffs’ Complaint alleged
                    that [Town Defendants] negligently organized the
                    parade in a manner which failed to provide safe
                    walking paths for parade attendees, and which
                    resulted in obstructions of public streets and
                    sidewalks, including in violation of N.C. Gen. Stat.
                    § 160A-296, and that [Town Defendants] failed to
                    require or issue a parade permit, in violation of [the
                    Town’s] ordinances.

             ....

             4.     Pursuant to an Order of this [c]ourt of April 30, 2014,
                    Plaintiffs were permitted to conduct discovery from
                    [Town Defendants] limited to the two issues of
                    sovereign immunity and public official immunity.

             ....

             6.     In their Complaint, and at the hearing, Plaintiffs
                    alleged that governmental immunity and public
                    official immunity were waived by [Town
                    Defendants’] purchase of liability insurance.

             ....

             11.    [The Town] insurance policy in effect on the date of
                    Cullen Parker’s death (December 5, 2011) contained
                    an express non-waiver of sovereign immunity
                    endorsement.

             12.    The language of this non-waiver endorsement is


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      identical to the language of the non-waiver
      endorsement at issue in Lunsford v. Renn, 207 N.C.
      App. 298 (2010); in that case, the N.C. Court of
      Appeals ruled that this language did not waive
      sovereign immunity.

13.   Notwithstanding the existence of this insurance
      policy, the [c]ourt has considered Plaintiffs’ claim
      that the doctrine of sovereign immunity is
      inapplicable on the grounds that [the Town] was
      engaged in a proprietary, rather than a
      governmental, function.

14.   In support of the allegation that the parade was
      proprietary in nature, Plaintiffs’ Complaint alleged,
      in part, that the parade generated substantial
      income for [the Town]. Plaintiffs’ Complaint also
      alleged, in part, that [the Town] was engaged in a
      joint venture with [the Chamber], which entity itself
      generated substantial income for organizing the
      parade. Further, Plaintiffs’ Complaint alleged, in
      part, that [the Town] promoted the parade outside
      its territorial limits. [Town Defendants] deny these
      allegations.

I5.   The North Carolina General Assembly has never
      designated either the planning or sponsorship of a
      parade as a governmental or proprietary function.

16.   The planning or sponsorship of a Christmas parade
      is not necessarily governmental in nature; that is,
      neither the planning nor sponsorship of a Christmas
      parade is an activity that can only be provided by a
      governmental agency.

17.   The planning or sponsorship of a Christmas parade
      is an activity that can be performed both privately
      and publicly.

18.   Moreover, Plaintiffs’ Complaint alleged that [Town


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                   Defendants] failed to properly maintain public
                   streets and sidewalks, which resulted in the injuries
                   alleged. For example, the Complaint alleged that
                   [Town Defendants] failed to properly light public
                   streets and sidewalks, and that public streets and
                   sidewalks were obstructed during the parade.

             19.   Moreover, the Complaint alleged that [the Town]
                   and [Mr.] Byrd were negligent in violating N.C. Gen.
                   Stat. § 160A-296, which imposes a positive duty
                   upon a municipality to keep its public streets,
                   sidewalks, and alleys open for travel and free from
                   unnecessary obstructions.

      The trial court then concluded that, because the General Assembly “has not

designated a parade as a governmental activity,” and because parades “are not

necessarily governmental in nature,” it needed to consider the third step of Bynum v.

Wilson County, 367 N.C. 355, 758 S.E.2d 643, reh’g denied, 367 N.C. 530, 761 S.E.2d

904 (2014), which “set forth a three-step inquiry for determining whether an activity

is governmental or proprietary in nature.” See Bynum, 367 N.C. at 358, 758 S.E.2d

at 646. The trial court then stated that it was “unable to conclusively decide for the

purposes of [Town Defendants’] Motions to Dismiss under Rule 12(b)(2) that [the

Town] was engaged in a governmental, rather than a proprietary, activity,” because

Plaintiffs and Town Defendants “ma[de] conflicting allegations and submit[ted]

conflicting discovery materials concerning whether [Town Defendants] generated

substantial income, over operating costs, from the parade directly and/or via a joint

venture with [the Chamber].” Additionally, although the trial court recognized that



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“the doctrine of sovereign immunity does not protect a municipality from liability for

a negligent breach of its statutory duties under N.C. Gen. Stat. § 160A-296 to keep

public streets, sidewalks, and alleys in proper repair, open for travel, and free from

unnecessary obstructions,” it further stated that it was “unable to conclusively

determine for the purposes of [Town Defendants’] Rule 12(b)(2) motions that

Plaintiffs’ claims based upon an alleged failure to maintain safe streets and sidewalks

and alleged violation of N.C. Gen. Stat. § 160A-296 should be dismissed.” The trial

court also stated that, although the complaint alleged Town Defendants violated N.C.

Gen. Stat. § 160A-296 and the Town’s parade permit ordinance, it was “unable to

conclusively determine for the purposes of [Town Defendants’] Rule 12(b)(2) motions

that the Complaint against [Town Defendants] should be dismissed due to public

official immunity.” The trial court then denied Town Defendants’ motions to dismiss

pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(2) and (b)(6). The trial court entered

an amended order on 30 September 2014 dismissing Plaintiffs’ complaint with

prejudice as to Mr. Morris and certified, pursuant to N.C. Gen. Stat. § 1A-1,

Rule 54(b), that the dismissal was a final judgment and there was no just reason for

delay of an appeal from the order. Town Defendants appeal from the trial court’s

order denying their N.C. Gen. Stat. § 1A-1, Rules 12(b)(2) and (b)(6) motions to

dismiss, and Plaintiffs cross-appeal from the trial court’s order dismissing their

complaint with prejudice as to Mr. Morris.



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                            II.      Town Defendants’ Appeal

      Town Defendants appeal from the trial court’s denial of their Rule 12(b)(2)

motions to dismiss on the grounds that the trial court lacked personal jurisdiction

over Town Defendants on the basis of sovereign immunity. The parties do not dispute

that the trial court’s order is interlocutory and “not immediately appealable.” Data

Gen. Corp. v. Cty. of Durham, 143 N.C. App. 97, 100, 545 S.E.2d 243, 245 (2001); see

also Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (“An

interlocutory order is one made during the pendency of an action, which does not

dispose of the case, but leaves it for further action by the trial court in order to settle

and determine the entire controversy.”), reh’g denied, 232 N.C. 744, 59 S.E.2d 429

(1950).

      Our Supreme Court has long recognized that “[c]ourts have differed as to

whether sovereign immunity is a matter of personal or subject matter jurisdiction,”

Teachy v. Coble Dairies, Inc., 306 N.C. 324, 327, 293 S.E.2d 182, 184 (1982) (providing

that “[a] viable argument may be propounded that . . . the particular forum of the

State courts has no jurisdiction over the State’s person,” while “the doctrine may

[also] be characterized as an objection that the State courts have no jurisdiction to

hear the particular subject matter of tort claims against the State”), and has itself

not yet “determine[d] whether sovereign immunity is a question of subject matter

jurisdiction or whether the denial of a motion to dismiss on grounds of sovereign



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immunity is immediately appealable.” Id. at 328, 293 S.E.2d at 184. Nevertheless,

this Court has “held consistently” that “denial of a Rule 12(b)(2) motion premised on

sovereign immunity constitutes an adverse ruling on personal jurisdiction and is

therefore immediately appealable under [N.C. Gen. Stat. §] 1-277(b).” Can Am S.,

LLC v. State, __ N.C. App. __, __, 759 S.E.2d 304, 308, disc. review denied, __ N.C. __,

766 S.E.2d 624 (2014).

             A.      Standard of Review for a Rule 12(b)(2) Motion to Dismiss

        “The standard of review to be applied by a trial court in deciding a motion

under Rule 12(b)(2) depends upon the procedural context confronting the court.” 1



        1  Plaintiffs assert that the standard of review for a sovereign immunity defense under
Rule 12(b)(2) is controlled by Sperry Corp. v. Patterson, 73 N.C. App. 123, 325 S.E.2d 642 (1985), which
Plaintiffs insist stands for the proposition that, “for purposes of governmental immunity hearings
under Rule 12(b)(2), conflicts between a defendant’s evidence and a plaintiff’s complaint are resolved
in favor of the plaintiff.” (Emphases added.) However, Plaintiffs appear to have misinterpreted the
scope of this Court’s review in Sperry Corp. In Sperry Corp., this Court considered whether the trial
court erred in denying the defendants’ motions to dismiss the plaintiff’s claims that “sought to enjoin
performance of the contracts and set aside the contracts due to . . . [the] alleged violation of G.S. 143-52
[by a State employee, who was then Secretary of the Department of Administration], on the grounds
that sovereign immunity barred the claims.” Sperry Corp., 73 N.C. App. at 125–26, 325 S.E.2d at 644–
45. This Court stated that the plaintiff’s complaint “raise[d] factual issues” as to whether the State
employee “exceeded her authority” and “violated G.S. 143-52 by a pattern of awarding state computer
contracts to one company, by deciding to award the contracts in question to [the] plaintiff’s competitor
before bid invitations ever issued, and by restricting bid specifications so that only [the] plaintiff’s
competitor could comply with them.” Id. at 126, 325 S.E.2d at 645. After reviewing “the entire record,
not just the pleadings,” id. at 127, 325 S.E.2d at 646 (emphasis added), this Court determined that
“[t]he record matters argued by [the] defendants provide[d] a persuasive defense of their actions but
[fell] short of irrefutably establishing that [the State employee] acted completely within her statutory
authority.” Id. After a brief recitation of the evidence presented by the defendants, the Court
concluded that the defendants “tend[ed] to contradict [the] plaintiff’s allegations and affidavits to the
effect that [the State employee] was predisposed to buy IBM products and structured the bid
invitations so as to give an unfair advantage to IBM.” Id. at 128, 325 S.E.2d at 646 (emphasis added).
However, because the defendants did not show that the State employee acted within her authority,
the Court determined that it could not hold “as a matter of law that [the State employee wa]s entitled



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Banc of Am. Sec. LLC v. Evergreen Int’l Aviation, Inc., 169 N.C. App. 690, 693,

611 S.E.2d 179, 182 (2005). Typically, the parties will present personal jurisdiction

issues in one of three procedural postures: “(1) the defendant makes a motion to

dismiss without submitting any opposing evidence; (2) the defendant supports its

motion to dismiss with affidavits, but the plaintiff does not file any opposing evidence;

or (3) both the defendant and the plaintiff submit affidavits addressing the personal

jurisdiction issues.” Id.

       “[W]hen neither party submits evidence, [t]he allegations of the complaint

must disclose jurisdiction although the particulars of jurisdiction need not be

alleged.” Id. (second alteration in original) (internal quotation marks omitted). “The

trial judge must decide whether the complaint contains allegations that, if taken as

true, set forth a sufficient basis for the court’s exercise of personal jurisdiction.” Id.

       “[I]f the defendant supplements his motion to dismiss with an affidavit or other

supporting evidence, the allegations [in the complaint] can no longer be taken as true

or controlling and plaintiff[] cannot rest on the allegations of the complaint.” Id.

(second and third alterations in original) (internal quotation marks omitted). In this

circumstance, in order “to determine whether there is evidence to support an exercise

of personal jurisdiction, the court then considers (1) any allegations in the complaint



to sovereign immunity.” Id. Therefore, contrary to Plaintiffs’ contention in the present case that
Sperry Corp. sets forth a standard of review that supersedes the “scores of Rule 12(b)(2) cases
seemingly requiring the weighing of competing evidence,” our reading of Sperry Corp., in its entirety,
belies Plaintiffs’ interpretation.

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that are not controverted by the defendant’s affidavit and (2) all facts in the affidavit

(which are uncontroverted because of the plaintiff’s failure to offer evidence).” Id. at

693–94, 611 S.E.2d at 182–83; see, e.g., Bruggeman v. Meditrust Acquisition Co.,

138 N.C. App. 612, 615–16, 532 S.E.2d 215, 218 (“[W]here, as in this case, defendants

submit some form of evidence to counter plaintiffs’ allegations, those allegations can

no longer be taken as true or controlling and plaintiffs cannot rest on the allegations

of the complaint. . . . In such a case, the plaintiff’s burden of establishing prima facie

that grounds for personal jurisdiction exist can still be satisfied if some form of

evidence in the record supports the exercise of personal jurisdiction. Thus, . . . we

look to the uncontroverted allegations in the complaint and the uncontroverted facts

in the sworn affidavit for evidence supporting the presumed findings of the trial court.

(citations omitted)), disc. review denied and appeal dismissed, 353 N.C. 261,

546 S.E.2d 90 (2000). In other words, where “unverified allegations in the complaint

meet plaintiff’s initial burden of proving the existence of jurisdiction . . . and

defendant[s] . . . d[o] not contradict plaintiff’s allegations[], such allegations are

accepted as true and deemed controlling.” Data Gen. Corp., 143 N.C. App. at 101,

545 S.E.2d at 246–47 (alterations and omissions in original) (internal quotation

marks omitted). “However, to the extent the defendant offers evidence to counter the

plaintiff’s allegations,” id. at 101, 545 S.E.2d at 247, since Rule 12(b)(2) permits a

trial court to consider matters outside the pleadings, see id. at 102, 545 S.E.2d at 247,



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“those allegations may no longer be accepted as controlling, and the plaintiff can no

longer rest on such allegations in the complaint.” Id. at 101, 545 S.E.2d at 247

(emphasis added).

      Finally, if the parties “submit dueling affidavits[,] . . . the court may hear the

matter on affidavits presented by the respective parties, . . . [or] the court may direct

that the matter be heard wholly or partly on oral testimony or depositions.” Banc of

Am. Sec. LLC, 169 N.C. App. at 694, 611 S.E.2d at 183 (second alteration and second

omission in original) (internal quotation marks omitted); see also Bruggeman,

138 N.C. App. at 615, 532 S.E.2d at 217 (“If the exercise of personal jurisdiction is

challenged by a defendant, a trial court may hold an evidentiary hearing including

oral testimony or depositions or may decide the matter based on affidavits.”). “If the

trial court chooses to decide the motion based on affidavits, [t]he trial judge must

determine the weight and sufficiency of the evidence [presented in the affidavits]

much as a juror.” Banc of Am. Sec. LLC, 169 N.C. App. at 694, 611 S.E.2d at 183

(alterations in original) (internal quotation marks omitted). Further, where parties

“submit[] depositions to the trial court, and [the court’s] findings are replete with

facts taken from these depositions,” after holding a hearing “on the question of

personal jurisdiction” where “parties argue[] facts based on the depositions,” such a

case has “moved beyond the procedural standpoint of competing affidavits to an

evidentiary hearing.” Deer Corp. v. Carter, 177 N.C. App. 314, 322, 629 S.E.2d 159,



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166 (2006). In such circumstances, the trial court must “act as a fact-finder, and

decide the question of personal jurisdiction by a preponderance of the evidence,” id.

(citation omitted), because a plaintiff then has “the ultimate burden of proving

jurisdiction rather than the initial burden of establishing prima facie that jurisdiction

[was] proper.” Id. (alteration in original) (internal quotation marks omitted).

      “When this Court reviews a decision as to personal jurisdiction, it considers

only whether the findings of fact by the trial court are supported by competent

evidence in the record; if so, this Court must affirm the order of the trial court.” Banc

of Am. Sec. LLC, 169 N.C. App. at 694, 611 S.E.2d at 183 (internal quotation marks

omitted). “Findings of fact and conclusions of law are necessary on decisions of any

motion or order ex mero motu only when requested by a party.” N.C. Gen. Stat. §

1A-1, Rule 52(a)(2) (2013).

      In the present case, pursuant to Plaintiffs’ motion, the trial court continued

the hearing on Town Defendants’ motions to dismiss to allow discovery served on

Town Defendants “limited in scope to only those issues raised in [Town Defendants’]

Rule 12(b)(2) Motion[s] to Dismiss for lack of personal jurisdiction on the basis of

sovereign immunity and public official immunity.” As referenced above, the record

indicates that, on this issue, Town Defendants filed the following: affidavits from Mr.

Thompson, the Town’s finance director, and the senior underwriting manager of the

Town’s insurance company; responses to Plaintiffs’ interrogatories; responses to



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Plaintiffs’ requests for admissions; responses to Plaintiffs’ requests for production of

documents; the Town’s Rule 30(b)(6) deposition; a copy of the more-than-115-page

insurance policy issued to the Town for the policy period of 1 July 2011 to 1 July 2012

that included a “Sovereign Immunity Non-Waiver Endorsement;” and more than

300 pages of documents that included e-mail correspondence between the Chamber

and Town Defendants related to the Town’s involvement in the planning of the

parade, bank statements for the Town’s General Fund account from which parade-

related expenses “would have been processed for the requested time period,” and

applications for “privilege licenses” for which fees were paid to the Town “for peddlers

to sell items on the street on the day of the parade.”

      Moreover, contrary to Plaintiffs’ suggestion in its response to Town

Defendants’ principal brief, the record further reflects that Plaintiffs did not rest on

the allegations in their complaint in response to Town Defendants’ Rule 12(b)(2)

motions to dismiss. Rather, the record indicates that Plaintiffs also presented almost

200 pages of additional discovery materials for the trial court’s consideration that

included: an affidavit from an expert on risk management and safety for municipal

parades who attested that the parade organizers “fail[ed] to properly manage,

operate, and maintain the streets and sidewalks of [the Town;]” affidavits and

accompanying exhibits from Mrs. Parker and Mr. Parker; numerous Christmas

parade entry applications from 2011, 2012, and 2013; a 2011 monthly revenue



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expense report for the Chamber; a listing of the commercial floats for the

2011 Christmas parade; 2012 and 2013 Christmas parade sponsorship applications;

2013 Christmas parade vendor applications; copies of advertising for the 2011

Christmas parade; copies of advertising “relating to parades and similar events held

in other towns in the region[;]” a copy of the Commercial General Liability Coverage

Part of the insurance policy issued to the Town for the policy period of 1 July 2010 to

1 July 2011; a copy of the Chamber’s bylaws; and a copy of the minutes taken from

the Chamber’s board of directors’ meeting on 15 December 2011.

      Thus, the record reflects the parties each submitted affidavits, depositions, and

other documentary evidence to the trial court for consideration as to whether it had

personal jurisdiction over Town Defendants.           Therefore, upon considering the

question of personal jurisdiction in light of the procedural posture of this case, we

conclude that the trial judge had the responsibility of “act[ing] as a fact-finder,” see

Deer Corp., 177 N.C. App. at 322, 629 S.E.2d at 166, and was responsible for

“determin[ing] the weight and sufficiency of the evidence.” See Banc of Am. Sec. LLC,

169 N.C. App. at 694, 611 S.E.2d at 183 (internal quotation marks omitted).

                         B.     Sovereign Immunity Defined

      “Sovereign immunity ordinarily grants the [S]tate, its counties, and its public

officials, in their official capacity, an unqualified and absolute immunity from law

suits.” Paquette v. Cty. of Durham, 155 N.C. App. 415, 418, 573 S.E.2d 715, 717



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(2002), disc. review denied, 357 N.C. 165, 580 S.E.2d 695 (2003).         “The rule of

sovereign immunity applies when the governmental entity is being sued for the

performance of a governmental, rather than proprietary, function.” Id. “Any activity

of [a town] which is discretionary, political, legislative, or public in nature and

performed for the public good in behalf of the State rather than for itself comes within

the class of governmental functions.” Britt v. City of Wilmington, 236 N.C. 446, 450,

73 S.E.2d 289, 293 (1952). “When, however, the activity is commercial or chiefly for

the private advantage of the compact community, it is private or proprietary.” Id. In

other words, when a town 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.”         Id. at 450–51,

73 S.E.2d at 293 (internal quotation marks omitted). “[G]enerally speaking, the

distinction is this:   If the undertaking of the [town] is one in which only a

governmental agency could engage, it is governmental in nature. It is proprietary

and private when any corporation, individual, or group of individuals could do the

same thing.” Id. at 451, 73 S.E.2d at 293 (internal quotation marks omitted).

                 C.     Sovereign Immunity and Liability Insurance

      However, “[a] town or municipality may waive sovereign immunity through

the purchase of liability insurance.” Lunsford v. Renn, 207 N.C. App. 298, 308,



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700 S.E.2d 94, 100 (2010), disc. review denied, 365 N.C. 193, 707 S.E.2d 244 (2011).

Nonetheless, “[i]mmunity is waived only to the extent that the [municipality] is

indemnified by the insurance contract from liability for the acts alleged.”                         Id.

(alterations in original) (internal quotation marks omitted). Thus, “[a] governmental

entity does not waive sovereign immunity if the action brought against them is

excluded from coverage under their insurance policy.” Id. (internal quotation marks

omitted).

       In the present case, Plaintiffs alleged Town Defendants waived sovereign

immunity because the Town purchased liability insurance, thereby waiving any

defense of immunity from suit pursuant to N.C. Gen. Stat. § 160A-485(a). Town

Defendants contend the trial court correctly determined that the Town’s purchase of

liability insurance did not waive Town Defendants’ governmental and public official

immunities because the insurance policy contained a non-waiver endorsement2

identical to that in Lunsford, 207 N.C. App. at 308–10, 700 S.E.2d at 100–01 (holding

the record showed that the town defendants “ha[d] not waived governmental

immunity through their insurance policy” because “the action brought against them




       2 The “Sovereign Immunity Non-Waiver Endorsement” in the present case, as in Lunsford,
provided as follows: “In consideration of the premium charged, it is hereby agreed and understood
that the policy(ies) coverage part(s) or coverage form(s) issued by us provide(s) no coverage for any
‘occurrence[,]’ ‘offense[,]’ ‘accident[,]’ ‘wrongful act[,]’ claim or suit for which any insured would
otherwise have an exemption or no liability because of sovereign immunity, any governmental tort
claims act or laws, or any other state or federal law. Nothing in this policy, coverage part or coverage
form waives sovereign immunity for any insured.”

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[was] excluded from coverage under their insurance policy” (citations and internal

quotation marks omitted)). However, in support of Plaintiffs’ assertion that the trial

court erred with respect to this determination, Mr. Parker attested in his affidavit to

the following:

             6.     Later, I went by Snipes Insurance and requested a
                    copy of the [Town’s insurance] policy. Amy Goodwin
                    gave me a copy of the policy, attached as Exhibit A,
                    and wrote her name and number at the top in case
                    we had any questions. Exhibit A is a true and
                    complete copy of the policy as it was given to me and
                    represented to be the policy that covered the Town
                    at the time.

             7.     [Mrs. Parker] later called Amy to ask about the
                    policy term, and whether the policy effective in
                    December 2011 was the same as the copy we were
                    given, she was told that it was the same policy, just
                    renewed for a new term. There was no endorsement
                    with the policy that had anything to do with
                    immunity.

             8.     I understand that counsel for [the Town] contends
                    that the policy in effect at the time of Cullen’s death
                    included an endorsement for non-waiver of
                    governmental immunity.             This is entirely
                    inconsistent with what [the Town’s] insurance agent
                    informed me.

The exhibit accompanying Mr. Parker’s affidavit consisted entirely of the Commercial

General Liability Coverage Part of the Town’s insurance policy for the policy period

from 1 July 2010 to 1 July 2011. The declarations page from this policy indicates that

this was a new policy, and indicated the cost of the advance premium for “this



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coverage part.” (Emphasis added.)

      However, while the policy accompanying the affidavit from the senior

underwriting manager of the Town’s insurance company — which was submitted to

the trial court by Town Defendants — included the Commercial General Liability

Coverage Part of the Town’s insurance policy for the policy period of 1 July 2011 to

1 July 2012, which was the policy in effect at the time that Cullen was struck by the

vehicle in the alley, it also included four additional coverage parts (e.g., Commercial

Automobile, Law Enforcement Liability, Public Officials Liability, Employment

Practices Liability), as well as a Common Policy Declarations section that contained

twelve forms, among which was the “Sovereign Immunity Non-Waiver Endorsement”

described above. This endorsement expressly indicated that it “modifie[d] insurance

provided under” each of the five coverage parts of the policy. The policy also indicated

that it was a renewal of the policy number identified on the Commercial General

Liability Coverage Part that accompanied Mr. Parker’s affidavit. Because it was

incumbent upon the trial court to act as fact-finder and to determine the weight and

sufficiency of the evidence presented by the parties, and because there was competent

evidence to support its determination, we conclude that the trial court did not err

when, after weighing the evidence presented by the parties, it determined the Town

did not waive sovereign immunity through the purchase of its insurance policy.




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          D.    Bynum Three-Step Inquiry Concerning Governmental and
                             Proprietary Activities

       Town Defendants contend the trial court “misapplied the law regarding

governmental immunity” when it considered whether the “acts and omissions”

alleged by Plaintiffs against Town Defendants were governmental or proprietary

activities.

       Our Supreme Court has “set forth a three-step inquiry for determining

whether an activity is governmental or proprietary in nature.” Bynum, 367 N.C. at

358, 758 S.E.2d at 646. “First, a court must consider whether the legislature has

designated the activity as governmental or proprietary.”       Id. “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

governmental agency or instrumentality.” Id. at 358–59, 758 S.E.2d at 646 (internal

quotation marks omitted). “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.” Id. at 359, 758 S.E.2d at

646 (internal quotation marks omitted). “Relevant to this [final] 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.” Id. (internal quotation

marks omitted). While “this Court has held[] [c]harging a substantial fee to the


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extent that a profit is made is strong evidence that the activity is proprietary,” Willett

v. Chatham Cty. Bd. of Educ., 176 N.C. App. 268, 270, 625 S.E.2d 900, 902 (2006)

(second alteration in original) (internal quotation marks omitted), “a profit motive is

not the sole determinative factor when deciding whether an activity is governmental

or proprietary.” Id. (internal quotation marks omitted). “Instead, courts look to see

whether an undertaking is one traditionally provided by the local governmental

units.” Id. (internal quotation marks omitted).

      Nonetheless, our Supreme Court has further directed that “[g]overnmental

immunity turns on whether the alleged tortious conduct of the county or municipality

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

367 N.C. at 358, 758 S.E.2d at 646 (emphasis added) (internal quotation marks

omitted). Thus, “the analysis should center upon the governmental act or service that

was allegedly done in a negligent manner,” id. at 359, 758 S.E.2d at 646 (emphasis

added), and the focus of this three-step inquiry should be on “the importance of the

character of the municipality’s acts, rather than the nature of the plaintiff’s

involvement.” Id.

      In the complaint, Plaintiffs alleged that “[t]he sponsoring, organizing,

publicizing and carrying out of the logistics of the Christmas Parade by [the Town]

and [the Chamber] are proprietary activities, engaged in for the private advantage

and commercial gain of the local [Town] community members and businesses,” and



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“[a]s sponsors of the Parade, [Town Defendants and the Chamber] . . . ha[d] a duty to

ensure the safety of citizens and visitors who [came] to the Parade, including the duty

to anticipate the presence of pedestrians, including children, in the parade area and

safeguard them from harm from vehicular traffic.” However, Plaintiffs alleged, “[i]n

particular, [Town] Defendants failed to” do the following:

             a)     Prevent vehicle ingress and egress from parking
                    areas inside the parade route prior to, during and
                    immediately after the parade. In particular, there
                    were no barricades restricting traffic from entering
                    or exiting the [parking] lot on South 12th Street, no
                    police or safety personnel assisting pedestrians and
                    drivers leaving the parade area at a specific
                    ingress/egress point within the parade route;

             b)     Provide safe walking paths for pedestrians to access
                    and exit the parade route. In particular, there was
                    no marked pedestrian walkway from Denim Drive to
                    East H Street, and there was no police or public
                    safety presence directing or preventing traffic flow
                    along South 12th Street;

             c)     Provide adequate police presence to manage public
                    safety at the event. For example, there was a single
                    Erwin Police Car positioned across from the
                    [parking] lot exit on South 12th Street. However,
                    the car was unmanned with no officer providing
                    traffic control or pedestrian support in that area.
                    The presence of the unmanned car presented a false
                    and misleading impression of safety to the public;
                    [and]

             d)     Test and ensure proper function of street lights
                    inside, along and surrounding the parade route. For
                    example, the public street light on South 12th
                    Street, located directly in front of [Mr. Morris’s


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                     building], was not lit[.]

Plaintiffs further alleged that, as a result of “these breaches,” “vehicular and

pedestrian traffic was disorganized, unmonitored and unsafe,” “lighting and visibility

at and around the location of the incident was inadequate and unsafe,” and, “[a]s a

direct and proximate result” of these “failures,” Cullen was struck by a vehicle in the

alley.

         In its order, after finding that the General Assembly “has never designated

either the planning or sponsorship of a parade as a governmental or proprietary

function,” and that “[t]he planning or sponsorship of a Christmas parade is an activity

that can be performed both privately and publicly,” the trial court concluded that

neither the first nor second steps of Bynum were determinative as to whether the

Town was engaged in a governmental, rather than a proprietary activity. Thus, the

trial court turned to the third step of the Bynum three-step analysis.           After

considering the complaint and the discovery materials submitted by the parties, the

trial court concluded that, in light of the parties’ “conflicting allegations and . . .

conflicting discovery materials concerning whether [Town Defendants] generated

substantial income, over operating costs, from the parade directly and/or via a joint

venture with [the Chamber],” the court was “unable to conclusively decide” whether

Town Defendants were engaged in a governmental, rather than a proprietary,

activity.



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      However, an examination of Town Defendants’ allegedly tortious conduct

shows that such conduct arose from activities that have already been designated as

governmental or are necessarily governmental in nature because they can only be

provided by a governmental agency or instrumentality. Plaintiffs specifically alleged,

among other things, that, at the time Cullen was struck in the alley, there was “an

unoccupied police car parked nearby” but “no one was monitoring or directing traffic

in and out of the [parking lot,]” and there were no barricades preventing the use of

the parking lot during the course of the parade. Thus, Plaintiffs allege that Cullen

was struck by the vehicle in the alley as a result of Town Defendants’ failure to do

the following activities, each of which has been recognized as a governmental

function:   providing a law enforcement presence, see, e.g., Hinson v. City of

Greensboro, __ N.C. App. __, __, 753 S.E.2d 822, 827 (2014), disc. review withdrawn,

367 N.C. 516, 761 S.E.2d 648 (2014); regulating traffic and “deciding which roads to

keep open for vehicular traffic and which roads should not continue to be open for

such travel,” see, e.g., Kirkpatrick v. Town of Nags Head, 213 N.C. App. 132, 142,

713 S.E.2d 151, 158 (2011); approving or denying permits, see, e.g., Tabor v. Cty. of

Orange, 156 N.C. App. 88, 91, 575 S.E.2d 540, 543 (2003); and providing ambulance

services, see, e.g., Childs v. Johnson, 155 N.C. App. 381, 386, 573 S.E.2d 662, 665

(2002).

      Therefore, because the activities that are alleged against Town Defendants to



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have directly and proximately caused the vehicle to strike Cullen in the alley are

governmental functions, we conclude that Plaintiffs’ claim of negligence against Town

Defendants with respect to those activities are barred by sovereign immunity.

Consequently, we need not consider whether the trial court’s application of the third

step in Bynum to the question of whether “[t]he planning or sponsorship of a

Christmas parade” is a governmental or proprietary function was erroneous,3 since

an examination of whether “substantial fee[s]” were charged by, or accrued to, Town

Defendants for this activity would only have been required if “the particular service[s

at issue could] be performed both privately and publicly,” see Bynum, 367 N.C. at 358,

758 S.E.2d at 646 (emphasis added), which is not true of the challenged services

enumerated above. Accordingly, we hold the trial court erred by denying Town

Defendants’ Rule 12(b)(2) motions to dismiss Plaintiffs’ claim of negligence against

Town Defendants on the grounds that Town Defendants breached their duty of care

to ensure the safety of residents and visitors to the 2011 Christmas parade.

                    E.      Alleged Violations of N.C. Gen. Stat. § 160A-296(a)




       3 We note that the record includes affidavits and voluminous discovery materials submitted by
both the moving and non-moving parties for the trial court’s consideration in response to Town
Defendants’ Rule 12(b)(2) motions to dismiss. Therefore, although the trial court stated it was “unable
to conclusively decide” whether Town Defendants were engaged in a governmental, rather than a
proprietary, activity — because the parties presented “conflicting allegations and . . . conflicting
discovery materials concerning whether [Town Defendants] generated substantial income, over
operating costs, from the parade directly and/or via a joint venture with [the Chamber]” — the trial
court was responsible for “act[ing] as a fact-finder,” see Deer Corp., 177 N.C. App. at 322, 629 S.E.2d
at 166, and for “determin[ing] the weight and sufficiency of the evidence.” See Banc of Am. Sec. LLC,
169 N.C. App. at 694, 611 S.E.2d at 183 (internal quotation marks omitted).

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      Town Defendants next contend the trial court erred by denying its

Rule 12(b)(2) motions to dismiss Plaintiffs’ claim that the Town and Mr. Byrd

breached their duties in violation of N.C. Gen. Stat. § 160A-296(a).

      N.C. Gen. Stat. § 160A-296(a) provides in relevant part:

             A city shall have general authority and control over all
             public streets, sidewalks, alleys, bridges, and other ways of
             public passage within its corporate limits except to the
             extent that authority and control over certain streets and
             bridges is vested in the Board of Transportation. General
             authority and control includes but is not limited to all of
             the following:

             (1)    The duty to keep the public streets, sidewalks,
                    alleys, and bridges in proper repair.

             (2)    The duty to keep the public streets, sidewalks,
                    alleys, and bridges open for travel and free from
                    unnecessary obstructions.

             ....

             (4)    The power to close any street or alley either
                    permanently or temporarily.

             (5)    The power to regulate the use of the public streets,
                    sidewalks, alleys, and bridges.

             ....

             (7)    The power to provide for lighting the streets, alleys,
                    and bridges of the city.

N.C. Gen. Stat. § 160A-296(a)(1), (2), (4), (5), and (7) (2013). Thus, although the

“[m]aintenance of . . . public road[s and] highway[s] is generally considered a



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governmental function[, an] exception is made in respect to streets and sidewalks of

a municipality.” Kirkpatrick, 213 N.C. App. at 140, 713 S.E.2d at 157 (alterations

and omission in original) (internal quotation marks omitted). “This exception to the

general rule that street and road maintenance is a governmental function . . . has

been recognized and uniformly applied in this jurisdiction [so that] the maintenance

of streets and sidewalks is [properly classified] as a ministerial or proprietary

function.” Id. (alterations in original) (internal quotation marks omitted). The duty

“is positive. While the municipal authorities have discretion in selecting the means

by which the traveling public is to be protected against a dangerous defect in the

street, provided the means selected are adequate, there is no discretion as to the

performance or nonperformance of the duty itself.” Id. (internal quotation marks

omitted).   Accordingly, a town or municipality has an “obligation to protect

individuals from injury resulting from defective street and roadway conditions

without being allowed to avoid liability for negligently performing its street and road

maintenance obligations by relying on a governmental immunity defense while

retaining discretion over the manner in which streets and roads are actually

maintained.” Id.

      “[T]he extent to which particular municipal streets and roads are kept open for

use by members of the public . . . is a governmental function and that governmental

immunity is available to municipalities as a defense to damage claims arising from



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such discretionary road closure decisions.” Id. at 142, 713 S.E.2d at 158. In other

words, “municipalities may exercise their discretion, while remaining subject to

protection from liability by the doctrine of governmental immunity, in deciding which

roads to keep open for vehicular traffic and which roads should not continue to be

open for such travel.” Id. In the event that the municipality “decides to allow travel

on a particular street or road, governmental immunity is not available as a defense

to any claim arising from personal injuries or property damage sustained as a result

of a defective condition in the maintenance of that street or road.” Id.

       “[A]n obstruction can be anything . . . which renders the public passageway

less convenient or safe for use.” Sisk v. City of Greensboro, 183 N.C. App. 657, 659,

645 S.E.2d 176, 179 (omission in original) (internal quotation marks omitted), disc.

review denied, 361 N.C. 569, 650 S.E.2d 813 (2007). However, traffic on a crossing

street is not a type of obstruction against which a municipality has a duty to protect

its citizens, since such is not something over which a municipality has control and is

not a fixture alongside a public road. See id. at 659–60, 645 S.E.2d at 179. To consider

traffic as an obstruction “would lead to the absurd result of subjecting a municipality

to potential liability every time there is a traffic accident on a city street. In short, a

moving car that is being operated, even if negligently, cannot be considered an

‘obstruction’ within the meaning of N.C. Gen. Stat. § 160A-296(a)(2).” Id. at 660,

645 S.E.2d at 179. Nonetheless, “parked cars could constitute obstructions which



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might violate the requirements of N.C. Gen. Stat. § 160A-296.” Beckles–Palomares v.

Logan, 202 N.C. App. 235, 244, 688 S.E.2d 758, 764 (emphasis added), disc. review

denied, 364 N.C. 434, 702 S.E.2d 219 (2010).

      In the present case, Plaintiffs alleged that the Town and Mr. Byrd breached

their duties in violation of N.C. Gen. Stat. § 160A-296(a) in the following ways:

             a)     [The Town] blocked or allowed the blocking of South
                    12th Street at the Denim Street entrance and the
                    East H Street entrance to the Street, but failed to
                    block traffic from using the alley or other entrances
                    to [the parking lot] by the public before, during and
                    after the parade;

             b)     [The Town] allowed South 12th Street at the
                    Incident Site to be obstructed by an 18-wheeled
                    truck during the course of the parade and events,
                    without providing traffic control for the truck or near
                    the Incident Site;

             c)     [The Town] allowed vehicles to be parked along the
                    alley and used as observation stations for the
                    parade, which further obstructed the view for
                    pedestrians and drivers at the Incident Site;

             d)     [The Town] failed to maintain an existing public
                    street light to ensure that it was functioning to
                    illuminate South 12th Street near its intersection
                    with the alley at the Incident Site; [and]

             e)     [The Town] failed to otherwise provide adequate
                    street lighting at the Incident Site[.]

Plaintiffs also alleged that an 18-wheeler truck “was parked or stopped in the middle

of South 12th Street” as the group walked towards the restaurant, that trash



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receptacles were located along the north side of the alley behind the restaurant, and

that cars were parked in areas “not designated for parking” near the restaurant.

However, Plaintiffs did not allege that any of these conditions impeded the driver’s

ability to see, or avoid striking, Cullen as Cullen crossed the alley in front of her

vehicle along South 12th Street. Moreover, Plaintiffs alleged that, at the time the

group was crossing the alley, the 18-wheeler truck was no longer “blocking cars” from

exiting the parking lot through the alley onto South 12th Street, the receptacles were

located north of the incident site, and Plaintiffs did not allege that any cars were

obstructing the ingress/egress point of the alley onto South 12th Street.

      In its order, the trial court expressly concluded that, after considering “the

[c]omplaint and partial discovery materials submitted,” (emphasis added), the court

was “unable to conclusively determine for the purposes of [Town Defendants’]

Rule 12(b)(2) motions [whether] Plaintiffs’ claims based upon an alleged failure to

maintain safe streets and sidewalks and alleged violation of N.C. Gen. Stat.

§ 160A-296 should be dismissed.” In other words, with respect to Plaintiffs’ claim

that Town Defendants’ alleged violations of N.C. Gen. Stat. § 160A-296(a) directly

and proximately caused Cullen to be struck by the vehicle, the trial court stated that

it considered the affidavits and other discovery materials presented by the parties,

but did not make specific findings about the evidence presented and did not

“determine the weight and sufficiency of the evidence [presented].” See Banc of Am.



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Sec. LLC, 169 N.C. App. at 694, 611 S.E.2d at 183 (internal quotation marks omitted).

Since the trial court’s order indicated that it considered evidence beyond the

allegations in Plaintiffs’ complaint, we remand this matter to the trial court with

instruction to make findings that do not just reiterate Plaintiffs’ allegations, but

instead reflect its assessment of the evidence presented and its determination of the

weight and sufficiency of this evidence, and to determine whether such evidence

established that these alleged violations of N.C. Gen. Stat. § 160A-296(a) directly and

proximately caused the driver of the vehicle to strike Cullen.

         F.      Issues on Appeal Concerning Public Official Immunity and
                                Public Duty Doctrine

      Town Defendants finally contend the trial court erred when it made the

following conclusion:

              Public official immunity does not apply where “conduct
              violates clearly established statutory or constitutional
              rights of which a reasonable person in their position would
              be aware.” Rogerson v. Fitzpatrick, 170 N.C. App. 387, 390
              (2005). The Complaint alleged that [Town Defendants]
              violated several such laws, including N.C. Gen. Stat.
              § 160A-296 and a parade permit ordinance of [the Town].
              At this point, the [c]ourt is unable to conclusively
              determine for the purposes of [Town Defendants’]
              Rule 12(b)(2) motions that the Complaint against [Town
              Defendants] should be dismissed due to public official
              immunity.

The record before us indicates that Town Defendants moved to dismiss Plaintiffs’

complaint on the basis of public official immunity and the public duty doctrine



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pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), and not pursuant to N.C. Gen. Stat.

§ 1A-1, Rule 12(b)(2). Nevertheless, because we remand this matter to the trial court

to determine the weight and sufficiency the evidence presented concerning alleged

violations of N.C. Gen. Stat. § 160A-296(a) and to make findings and conclusions with

respect to this evidence, we decline to undertake an examination of whether Town

Defendants’ purported violations of N.C. Gen. Stat. § 160A-296(a) implicate the public

official immunity doctrine. See Little v. Wachovia Bank & Tr. Co., 252 N.C. 229, 243,

113 S.E.2d 689, 700 (1960) (“The courts have no jurisdiction to determine matters

purely speculative, enter anticipatory judgments, . . . deal with theoretical problems,

give advisory opinions, answer moot questions, adjudicate academic matters, provide

for contingencies which may hereafter arise, or give abstract opinions.”).

Additionally, because we have determined that Plaintiffs’ claim of negligence against

Town Defendants on the grounds that Town Defendants breached their duty of care

to ensure the safety of residents and visitors at the 2011 Christmas parade were

barred by sovereign immunity, we need not undertake an examination of whether the

trial court erroneously denied Town Defendants’ 12(b)(6) motions to dismiss on the

grounds that Plaintiffs’ allegations concerning the sufficiency of the police presence

and the regulation of traffic in support of Plaintiffs’ claim of negligence were barred

by the public duty doctrine.




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                            III.   Plaintiffs’ Cross-Appeal

      Plaintiffs cross-appeal from the trial court’s amended order granting Mr.

Morris’s Rule 12(b)(6) motion and dismissing with prejudice Plaintiffs’ complaint as

to Mr. Morris. The parties do not dispute that this order is interlocutory and not

immediately appealable. However, the record indicates that the trial court certified,

pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), that the dismissal was a final

judgment and there was no just reason for delay of an appeal from such order. See

Sharpe v. Worland, 351 N.C. 159, 161–62, 522 S.E.2d 577, 579 (1999) (“[I]mmediate

review is available when the trial court enters a final judgment as to one or more, but

fewer than all, claims or parties and certifies there is no just reason for delay.”).

      “A motion to dismiss made pursuant to G.S. 1A-1, Rule 12(b)(6) tests the legal

sufficiency of the complaint.” Harris v. NCNB Nat’l Bank of N.C., 85 N.C. App. 669,

670, 355 S.E.2d 838, 840 (1987) (citing Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d

161, 163 (1970)). “In order to withstand such a motion, the complaint must provide

sufficient notice of the events and circumstances from which the claim arises, and

must state allegations sufficient to satisfy the substantive elements of at least some

recognized claim.” Id. “The question for the court is whether, as a matter of law, the

allegations of the complaint, treated as true, are sufficient to state a claim upon which

relief may be granted under some legal theory, whether properly labeled or not.” Id.

“In general, a complaint should not be dismissed for insufficiency unless it appears to



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a certainty that plaintiff is entitled to no relief under any state of facts which could be

proved in support of the claim.” Id. at 670–71, 355 S.E.2d at 840 (internal quotation

marks omitted). “Such a lack of merit may consist of the disclosure of facts which

will necessarily defeat the claim as well as where there is an absence of law or fact

necessary to support a claim.” Id. at 671, 355 S.E.2d at 840–41. “Our standard of

review on a motion to dismiss for failure to state a claim is de novo review.” Jackson

v. Charlotte Mecklenburg Hosp. Auth., __ N.C. App. __, __, 768 S.E.2d 23, 24 (2014)

(internal quotation marks omitted).

       To make out a prima facie case of negligence, “a plaintiff must show that:

(1) the defendant owed the plaintiff a duty of care; (2) the defendant’s conduct

breached that duty; (3) the breach was the actual and proximate cause of the

plaintiff’s injury; and (4) damages resulted from the injury.” Bostic Packaging, Inc.

v. City of Monroe, 149 N.C. App. 825, 830, 562 S.E.2d 75, 79, disc. review denied,

355 N.C. 747, 565 S.E.2d 192 (2002).

       Plaintiffs contend the allegations in their complaint were sufficient to defeat

Mr. Morris’s Rule 12(b)(6) motion to dismiss and assert that the trial court erred by

granting Mr. Morris’s motion. Although Plaintiffs concede that Cullen was struck by

the vehicle in the alley adjacent to Mr. Morris’s building, which alley was privately

owned by Defendant Erwin Parking Center, Inc. (“Erwin Parking”) and not by Mr.




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Morris,4 Plaintiffs assert that the “dangerous condition” “restricting visibility for the

driver who struck Cullen” “originated on [Mr.] Morris’s property, and was therefore

caused by [Mr.] Morris.” We disagree.

       “A landowner in North Carolina owes to those on its land the duty to exercise

reasonable care in the maintenance of [its] premises.” Lampkin ex rel. Lapping v.

Hous. Mgmt. Res., Inc., 220 N.C. App. 457, 459, 725 S.E.2d 432, 434 (alteration in

original) (internal quotation marks omitted), disc. review denied, 366 N.C. 242,

731 S.E.2d 147 (2012). “[T]he duty to protect from a condition on property arises from

a person’s control of the property and/or condition, and in the absence of control, there

is no duty.” Id. at 460, 725 S.E.2d at 435. Thus, “a landowner’s duty to keep property

safe (1) does not extend to guarding against injuries caused by dangerous conditions

located off of the landowner’s property, and (2) coincides exactly with the extent of

the landowner’s control of his property.” Id. at 461, 725 S.E.2d at 435.

       In support of Plaintiffs’ assertion that they presented sufficient evidence of Mr.

Morris’s negligence, Plaintiffs direct our attention to Marzelle v. Ski-Land

Manufacturing Co., 227 N.C. 674, 44 S.E.2d 80 (1947), Dunning v. Forsyth Warehouse

Co., 272 N.C. 723, 158 S.E.2d 893 (1968), and Klassette v. Liggett Drug Co., 227 N.C.




       4 Plaintiffs alleged that Erwin Parking owned the property on which the incident occurred,
and that Mr. Morris was the president of Erwin Parking. However, Plaintiffs made no allegations or
claims against Mr. Morris in his capacity as president of Erwin Parking. Accordingly, we consider
only those allegations and claims made against Mr. Morris as owner of the building located
immediately adjacent to the site of the incident.

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353, 42 S.E.2d 411 (1947).     Plaintiffs argue that, like Marzelle, Dunning, and

Klassette, the present case concerns a circumstance in which a person was injured as

a result of a dangerous condition that originated on property adjacent to the incident

site property, and which properties did not share a common owner.

      In Marzelle, the plaintiff sustained an injury when he slipped on syrup that

was “flowing entirely across the sidewalk from the open doors [of the defendant’s

candy and confections manufacturing business] to the curb.” Marzelle, 227 N.C. at

675, 44 S.E.2d at 80.    The substance was being swept out of the doors of the

defendant’s business by the defendant’s employees, there was “no sign or other

warning of the slippery condition of the sidewalk,” and the substance “looked like

dirty water, off a dirty cement or wood floor.” Id. at 675–76, 44 S.E.2d at 80–81.

Because “there was nothing in the appearance or odor of the substance on the

sidewalk, as [the plaintiff] approached, to indicate it was syrup or to import danger

therefrom,” id. at 676, 44 S.E.2d at 81, the Court determined there was sufficient

evidence of the defendant’s negligence to withstand a motion for judgment of nonsuit,

even though the injury occurred on property that was not owned by the defendant.

See id.

      In Dunning, the plaintiff “was seriously injured when a metal covering over a

drainage culvert broke under her foot as she walked along the sidewalk on which the

defendant’s property abutted.” Dunning, 272 N.C. at 723, 158 S.E.2d at 894. The



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plaintiff alleged that the defendant, without first obtaining a permit that was

required by city ordinance, “cut through and removed a narrow cross-section of the

city’s concrete sidewalk for the purpose of constructing a drainage culvert to carry

surface water from its building under the sidewalk and into the city’s drainage

system,” id., and that, “[a]fter the excavation[,] the defendant placed over the culvert

a thin metal sheet, and on top of this metal sheet poured a covering of concrete

sufficient to make the surface conform to the undisturbed portion of the sidewalk.”

Id. “The metal sheet, weakened by corrosion, gave way when [the] plaintiff stepped

on it.” Id. The Court determined the evidence presented “was sufficient to permit

the jury to find the defendant created the defective condition which resulted in [the]

plaintiff’s injuries,” id. at 725, 158 S.E.2d at 895, even though the injury occurred on

property that was not owned by the defendant. See id. at 724, 158 S.E.2d at 895.

      Finally, in Klassette, the plaintiff was injured when she slipped on a greasy

substance that was “running out of” the building leased to the defendant, a drug store

company, and spreading over the sidewalk adjoining the defendant’s building. See

Klassette, 227 N.C. at 355, 42 S.E.2d at 413. Although the “greasy and oily substances

and liquids” running out of the building across the sidewalk were residue from the

aftermath of a fire in the building on the previous day, the plaintiff alleged that, by

allowing the substances and liquids to remain on the sidewalk, the defendant

“rendered said sidewalk in an unsafe and dangerous condition,” id., “took no



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measures to remedy the dangerous and unsafe condition of said sidewalk, or to guard

against the risks and dangers arising from the risks of said greasy and oily substances

and liquids thereon,” id. at 355–56, 42 S.E.2d at 413, and “failed to take any

precautions, or to notify persons attempting to use said sidewalk of the dangerous

and unsafe condition thereof.” Id. at 356, 42 S.E.2d at 413.

      However, in Klassette, our Supreme Court provided that, “in so far as

pedestrians are concerned, any liability of owner, or of occupant of abutting property

for hazardous condition existent upon adjacent sidewalk is limited to conditions

created or maintained by him, and must be predicated upon his negligence in that

respect.” Id. at 362, 42 S.E.2d at 418 (emphasis added). “[A]n owner, or an occupant

is liable, if at all, for damage caused by the escape of substances from the premises

only where some fault can be attributed to him.” Id. “The owner, or the occupant, is

not liable for injuries caused others in the absence of proof of negligence, unless he is

shown to have created a nuisance.” Id. Thus, contrary to the dispositions of Marzelle

and Dunning, in Klassette, the Court affirmed the trial court’s judgment for nonsuit

since there was “no evidence that the fire in the building was caused by the negligence

of the owners or of the occupant,” id., “the conditions resulting from extinguishing

the fire were brought about by the city in the exercise of a governmental function,

over which the owners, or the occupant had no control, and for which they, or it, may

not be held responsible,” id., and “[i]f oil from the drug store escaped in the water, the



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evidence fail[ed] to show that it was due to any fault on the part of the owners or of

the occupant.”5 Id.

        Mr. Morris, however, contends the present case is controlled by Lampkin ex

rel. Lapping v. Housing Management Resources, Inc., 220 N.C. App. 457, 725 S.E.2d

432 (2012).      In Lampkin, the plaintiff was a four-year-old child who sustained

permanent brain injury when she was playing on a playground in the common area

of an apartment complex that was located on land owned, operated, and managed by

the defendants, “passed through a broken portion of a chain-link fence owned by the

apartment complex to play on a frozen pond on adjacent property,” which property

was not owned by the defendants, and fell through the ice into the water. Lampkin,

220 N.C. App. at 458, 725 S.E.2d at 433–34. Prior to the plaintiff’s injury, the owner

of the adjacent property notified the apartment complex that “‘children were coming

through the fence onto her property’ and that she ‘was concerned someone would get

hurt.’” Id. at 458, 725 S.E.2d at 434. The plaintiff contended that a “reciprocal duty

should be imposed on landowners whose property abuts property on which a third

party maintains a pond, . . . where a landowner knows that children from his property

are gathering and playing on or near a dangerous condition on neighboring property,”




        5  Plaintiffs concede that the disposition of Klassette is contrary to the disposition they seek in
the present case. However, Plaintiffs assert that Klassette is relevant to their argument regarding
this issue on appeal because the Court recognized the principle “that landowners can be held liable
where their negligent actions create a dangerous condition that resulted in personal injury to someone
off-site.”

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and that “the landowner ha[d] a duty to protect those children from injury by that

condition.” Id. at 460, 725 S.E.2d at 434.

      This Court “disagree[d] with [the p]laintiffs’ contention that a landowner’s

duty of reasonable care extend[ed] to guarding against injury caused by a dangerous

condition on neighboring property, and . . . conclude[d] that the imposition of such a

duty would be contrary to public policy and the established law of this State,” id.,

because imposing such a reciprocal duty would necessarily “impermissibly shift the

burden of making that condition safe from the owner of that condition, who has

exclusive control over the use of her land, to the owner of the adjacent property, who

has no control.” Id. at 460, 725 S.E.2d at 434–35. “[B]ecause [the d]efendants did not

control the pond on the adjacent property, their duty to keep their premises safe did

not include an obligation to make the pond safe by preventing children on their land

from accessing the pond.” Id. at 461, 725 S.E.2d at 435.          “Rather, the adjacent

landowner, with exclusive control over the pond, had the sole duty to keep the pond

safe, the only obligation to act, and the only possible liability.” Id.

      Plaintiffs assert that the present case is distinguishable from Lampkin because

— unlike the frozen pond in Lampkin, which was not located on the property of the

defendants and was the dangerous condition at issue in that case — Plaintiffs contend

“the dangerous condition originated on [Mr.] Morris’s property” when Mr. Morris

“negligently failed to maintain the light which he installed and owned, . . . [which



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rendered] the incident site . . . dangerously dark[, and t]his dark condition . . . resulted

in Cullen’s death.” In other words, Plaintiffs insist that, like the confectioner’s syrup

in Marzelle, the greasy, oily, firehose residue in Klassette, and the weakened metal

sheet covering the drainage culvert in Dunning, the nonfunctioning light on Mr.

Morris’s building itself, and not the darkness, was the dangerous condition that

spread across the alley and caused the vehicle to strike Cullen. Nonetheless, we are

unpersuaded that the nonfunctioning light on the South 12th Street side of Mr.

Morris’s building was, itself, a dangerous condition that created “th[e] dark condition”

of the nighttime sky. As the owner of the property adjacent to the alley on which the

incident occurred, Mr. Morris’s liability, if any, was “limited to [hazardous conditions

existent that were] created or maintained by him,” see Klassette, 227 N.C. at 362,

42 S.E.2d at 418, and Mr. Morris “[wa]s not obligated to protect against injury from

a dangerous condition over which [he] ha[d] no control.” See Lampkin, 220 N.C. App.

at 464, 725 S.E.2d at 437. Because Plaintiffs did not allege that Mr. Morris had a

duty to illuminate the property that was owned by Erwin Parking, we conclude that

Plaintiffs’ complaint failed to sufficiently allege that Mr. Morris breached a duty owed

to Plaintiffs, and, thus, Plaintiffs failed to set forth a prima facie claim of negligence.

Accordingly, we hold the trial court did not err by dismissing with prejudice Plaintiffs’

claims against Mr. Morris.

       Because Plaintiffs did not allege any claim for negligence per se against Mr.



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Morris, we decline to address Plaintiffs’ argument on appeal concerning Mr. Morris’s

negligence based on his purported violations of the Town’s zoning ordinances.

Additionally, because Plaintiffs’ allegations were insufficient to support the

application of the voluntary undertaking doctrine, cf. Lampkin, 220 N.C. App. at 466–

67, 725 S.E.2d at 437–39, we decline to address Plaintiffs’ argument on appeal that

Mr. Morris “voluntarily assumed a duty of care when he affirmatively acted by

installing and operating a light at the incident site.”

                                   IV.    Conclusion

      In sum, we conclude that the trial court did not err when, after weighing the

evidence presented by the parties, it determined the Town did not waive sovereign

immunity through the purchase of its insurance policy. Because the activities that

are alleged against Town Defendants to have directly and proximately caused the

vehicle to strike Cullen in the alley are governmental functions, we conclude that

Plaintiffs’ claim of negligence against Town Defendants with respect to those

activities are barred by sovereign immunity, and that the trial court erred by denying

Town Defendants’ Rule 12(b)(2) motions to dismiss Plaintiffs’ claim of negligence

against Town Defendants on the grounds that Town Defendants breached their duty

of care to ensure the safety of residents and visitors to the 2011 Christmas parade.

We remand this matter to the trial court with instruction to make findings reflecting

its assessment of the evidence presented and its determination of the weight and



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sufficiency of this evidence, and to determine whether such evidence established that

the alleged violations of N.C. Gen. Stat. § 160A-296(a) directly and proximately

caused the vehicle to strike Cullen. Finally, because Plaintiffs’ complaint failed to

sufficiently allege that Mr. Morris breached a duty owed to Plaintiffs, and, thus, that

Plaintiffs failed to set forth a prima facie claim of negligence, we hold the trial court

did not err by dismissing with prejudice Plaintiffs’ claims against Mr. Morris.

      AFFIRMED IN PART; REVERSED IN PART; REMANDED IN PART.

      Judges HUNTER, JR. and DIETZ concur.




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