Marcia Burns and her husband, appellants, challenge the award of summary judgment against them in favor of the Mayor and City Council of Rockville (Rockville), appellees. Specifically, the Burnses contend:
“I. The Circuit Court erred in granting [the] Motion for Summary Judgment because there existed a genuine dispute as to material facts between the parties.
“II. The Circuit Court erred in granting [the] Motion for Summary Judgment because the [appellee] was engaged in a ‘proprietary function,’ and, therefore the defense of sovereign immunity does not lie.
“HI. The Circuit Court erred in granting [the] Motion for Summary Judgment because, to the extent applicable, the defense of sovereign immunity has been waived by the [appellee].
“IV. The Circuit Court erred in granting [the] Motion for Summary Judgment because the doctrine of sovereign immunity, as applied to municipal corporations and the distinction between governmental and proprietary functions is unconstitutional.”
The underlying facts are essentially undisputed. Marcia Burns arrived at a performance to be given by The Rock-ville Civic Ballet on December 13, 1981 at the F. Scott Fitzgerald Theater located in the Rockville Civic Center. Burns entered the small theater on the left side but was unable to locate available seats. Observing open seats on the right side of the theater, Burns chose to walk directly in front of the stage area rather than retreat up the left aisle, through the exit doors, and down the right or center aisle. *296 As she was crossing from the left aisle to the right aisle, she stepped into the orchestra area, which was depressed 10 to 12 inches. Burns misgauged the depth of the step and fell, suffering ankle and leg injuries.
Burns and her husband filed suit in the Circuit Court for Montgomery County against Rockville alleging that the orchestra “pit,” as they referred to it, was a dangerous condition which Rockville knew or should have known about and that Rockville was negligent in failing to provide warning signs, steps, barriers or contrasting colored carpet to warn business invitees of the lowered area. Rockville answered the complaint by pleading that it was not negligent and that Marcia Burns was contributorily negligent and assumed the risk of injury. Rockville subsequently filed a Motion for Summary Judgment alleging it was immune from suit under the doctrine of governmental immunity. The court agreed and judgment was entered accordingly.
In reviewing an award of summary judgment, the movant must have clearly demonstrated the absence of any genuine issue of material fact and must also have demonstrated that he or she is entitled to summary judgment as a matter of law.
Castiglione v. Johns Hopkins Hospital,
The summary judgment was based on the conclusion that when the Rockville Civic Ballet performed on December 13, 1981, Rockville was engaged in a governmental as opposed to a proprietary function and thus the doctrine of immunity barred the Burnses’ recovery.
Recently, the Court of Appeals discussed immunity available to the State and to municipalities in
Maryland-National Capital Park and Planning Commission v. Kranz,
“As this Court has often pointed out, the doctrine that the State of Maryland and state agencies are generally immune from suits, unless the immunity has been waived by the General Assembly, ‘ “is firmly embedded in the law of Maryland.” ’ Austin v. City of Baltimore,286 Md. 51 , 53,405 A.2d 255 (1979), quoting Katz v. Wash. Suburban Sanitary Comm’n,284 Md. 503 , 507,397 A.2d 1027 (1979). On the other hand, counties and municipalities do not possess this general immunity. Instead, counties and muncipalities have never been given immunity in contract actions, and, in tort actions, they are not immune with regard to those matters categorized as ‘proprietary’ but are immune with regard to those matters categorized as ‘governmental.’ See generally, e.g., Tadjer v. Montgomery County,300 Md. 539 , 546-550,479 A.2d 1321 (1984); Austin v. City of Baltimore, supra,286 Md. at 58-61, 63-66 (majority opinion), 70-78 (concurring and dissenting opinion), 83-84 [405 A.2d 255 ] (dissenting opinion); Katz v. Washington Sub. San. Comm’n supra,284 Md. at 507-512 ,397 A.2d 1027 ]; Bradshaw v. Prince George’s County, supra, 284 Md. [294] at 300 [396 A.2d 255 ] [(1979)]; American Structures v. City of Baltimore, 278 Md. ,356, 358-360,364 A.2d 55 (1976); Cox v. Anne Arundel County,181 Md. 428 , 431-433,31 A.2d 179 (1943).”
Traditionally, the immunity attaching to the State was referred to as sovereign immunity while that available to *298 municipalities was referred to as governmental immunity. In Kranz, the Court, however, emasculated the semantic distinction between the terms, noting that the cases more often than not used the terms interchangeably.
As stated, municipal immunity is not automatic, but when the municipality or county is engaged in a governmental function, immunity attaches.
Mayor of Baltimore v. State, ex rel. Blueford,
“Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature.”
Further clarifying this test in
Tadjer v. Montgomery County,
“Another way of expressing the test ... is whether the act performed is for the common good of all or for the special benefit or profit of the corporate entity.”
Thus, the essential question presented before the circuit court was whether Rockville was performing a governmental function when Marcia Burns was injured.
To support its position that the presentation of a ballet was governmental, Rockville submitted the affidavit of Betty Cheslowsky Wisda, supervisor of the Arts and Special Programs Division of the Department of Recreation and Parks of the City of Rockville. She indicated that the Rockville Civic Ballet was a part of her division. She also stated that the fee and ticket pricing policy of Rockville regarding the Ballet “neither anticipated to, nor [did] they, *299 cover the cost of running the Ballet.” 1 She set forth the receipts and expenses of the Ballet for fiscal years 1982-1985 which showed a net loss of between $1,193 and $1,799 a year. Rockville also submitted the affidavit of Mary Parker, Director of Finance for the City of Rockville, in which she indicated that for fiscal year 1982, in the general fund, there were funds appropriated to run the Rockville Civic Ballet and that therefore, the Ballet was an authorized city expenditure.
Applying the tests set out in Blueford and Tadjer, the circuit court agreed with Rockville that the Ballet was legislatively authorized, was solely for public enjoyment and was not a profit-making enterprise for the city, benefited the public welfare and had no element of private interest. Accordingly, the court ruled that Rockville was protected by municipal immunity.
L FACTUAL DISPUTE
Focusing on the profit element set out in Blueford, the Burnses first assert the court erred in granting summary judgment because a genuine dispute as to a material fact existed. 2 Referring to Wisda’s affidavit, they argue that several items of expense should not have been included in determining the Ballet’s profitability and thus whether the Ballet made a profit was a material factual question in dispute.
*300 We note that the Burnses presented this issue in their written motion opposing summary judgment, but at the hearing, counsel did not address this issue except for a passing reference to it as a “minor” factual dispute concerning profitability. Somehow, this “minor” factual dispute has been transformed into a material factual dispute on appeal.
Included in Wisda’s affidavit were expenses for “[facilities [r]ental of [r]ehearsal [s]pace”; “[sjtorage [a]rea/[t]ech [q]uarters”; and [facility [rjental of [tjheatre.” The affidavit then stated with respect to these items:
“7. That the valuation of the facility rental and storage/technical quarters is based upon a comparison of fees charged to other users of these facilities. There is no actual charge to the Civic Ballet for the use of these facilities, but, instead, the cost to the City of Rockville has been determined using this comparison method.”
The Burnses assert that without inclusion of those expenses, the Ballet operated at a profit. This argument failed to convince the trial judge and fails to convince this Court of the existence of a material fact for several reasons.
Relying on
Tadjer,
the Burnses argue that whether an activity operates at a profit is a question that can only be resolved by a trial on the merits. It is true in
Tadjer,
“If, as in Austin [v. Mayor of Baltimore,286 Md. 51 ,405 A.2d 255 (1979)] and [.Blueford ], the income was not adequate to maintain the landfill or if this income were barely adequate to cover expenses, we would agree that this landfill operation was a governmental function. On the other hand, if the income derived was in an amount substantially in excess of the County’s expenses for rent, operation and the like, so that the landfill was a real moneymaking proposition, it would be a proprietary func *301 tion. Only a trial on its merits can make this determination.” (Emphasis supplied).
In this regard, we find Tadjer distinguishable from the case sub judice. In Tadjer, the trial court granted a demurrer to a plaintiffs claim for negligence against Montgomery County based on immunity. The Tadjer Court reversed the trial court and this Court because there was no evidence before either court about the amount of expenses and revenues derived from the landfill:
“All we have is the fact set forth in the declarations that the County derived ‘substantial income’ from this operation. We, of course, have no way of knowing the amount of this income. It may be great or small.”
Tadjer,
More important, the issue challenged in the case at bar is not a factual question. The Burnses do not dispute the numerical expense and revenue calculations provided in Wisda’s affidavit. Of utmost importance to the case
sub judice,
they do not contest that the figures provided were not the actual costs to Rockville for providing the space used by the Ballet. In an unverified opposition to the motion for summary judgment, the Burnses merely alleged that the challenged expenses were “not actually paid or incurred by the City of Rockville and therefore should not be considered in determining the ballet’s profitability.” No affidavit was filed to support this claim.
Cf. Frush v. Brooks,
In any event, even if we accepted their argument that the rental and storage fees should not be used in calculating expenses, there still is no question but that the Ballet was not a moneymaking proposition. If we omit the challenged expenses from the expense calculation as the Burnses desire, the Ballet still operated either at a loss or a slight gain for all four years noted in Wisda’s affidavit. In an effort to alleviate its losses, the Ballet held bake and craft sales. The holding of bake and craft sales to generate sufficient income to allow the Ballet to “break even” does not convert an otherwise losing proposition into a profit-making one. Moreover, bake and craft sales are not activities generally engaged in by organizations that are designed to and anticipate making a profit. Moreover, the fact that the Ballet may have received some revenue gain for some of the years of its operation from a balance sheet point of view does not automatically mean it was designed as, and operates as, a profit-making activity. We find this situation governed under the rationale set out in
Austin,
“Although the fees projected when the Camp Cahill budget was proposed may have generated sufficient funds to cover day-to-day expenses of the camp, it is ‘obvious’, as the Court of Special Appeals ascertained, ‘that the City had a substantial capital investment in the Camp Cahill Recreation Center, and that it was required to subsidize the day-to-day operation of the Center and the day camp.’ We believe, as the intermediate appellate court believed, that the fees here did not result in a profit or emolument inuring to the City within the contemplation of the Blue-ford guidelines.” (Citation omitted.)
Wisda’s affidavit further stated that the Ballet also received, without an allocation of costs from Rockville, admin *303 istrative support including “publicity, graphic requests, advanced ticket sales, and budget items”; “[technical support from the City’s technical director/electrician in the areas of light design/execution, set designs/construction and sound execution”; “[secretarial staff, custodial staff, and the services of the civic center supervisor and the graphics department.” No figures were provided for the cost to Rockville for these items and they were not figured into the fiscal years’ expense calculations. It is clear, thus, that Rockville subsidized the Ballet in its day-to-day operations to an extent greater than that reflected in the expense calculations. In conclusion, we hold the trial court did not err in concluding the Ballet did not operate at a profit to Rockville.
II. GOVERNMENTAL OR PROPRIETARY FUNCTION
The Burnses next allege that Rockville was engaged in a proprietary function and thus the doctrine of municipal immunity is inapplicable. Focusing on the test set out in Blueford, they argue that the activity did not benefit the public health and promote the public welfare and that it had an element of private interest.
The Burnses specifically posit that the activity Rockville engaged in was not the maintenance of a municipal recreation program, but the ownership and maintenance of property: “[Rockville] was sued in its purely proprietary capacity as a land owner.” (Emphasis in original.) To support their position, the Burnses point out that the negligence they complained of was not in the performance of the Ballet, but instead was incident to the maintenance of property, specifically, a dangerously designed and maintained orchestra area. As they continue,
“it is not a necessary function of the sovereign to either own theaters or to produce ballet. One must stretch the common law and the doctrine of sovereign immunity to absurd lengths to find that the ownership of theaters or the production of ballets is a sufficient governmental *304 function to entitle [Rockville] the protection of the doctrine of sovereign immunity.”
We disagree.
In Austin, the Court of Appeals established that municipal recreation programs were governmental in nature. In that case, the Department of Recreation and Parks of the City of Baltimore operated a day camp, Camp Cahill, for underprivileged inner-city children. The mother of a young girl, who drowned during a camp field trip, sued the City of Baltimore, but was barred by the doctrine of municipal immunity. The Court stated:
“ ‘[P]ublic parks are vitally necessary to the public health and welfare, in the congested centers of population, in affording a temporary escape from the noise and dust and jostling of crowded city streets. So, too, swimming or wading pools and other public facilities for bathing have a direct and necessary relation to the public health in affording to the masses who are unable to go to the seashore or to inland lakes, or ponds or streams beyond the city, some opportunity of lessening the dangers and discomforts which are inseparable from the depressing and exhausting heat of the summer season.’ ”
Austin,
“ ‘The City’s election to furnish the day camp facilities to its citizens was a permitted exercise of its judgment as to the necessity for the program in the interest of the health, welfare and education of its children. To deny the City the protection of its cloak of [municipal] immunity in the operation of an activity necessary to the health, education and welfare of its children must have a chilling effect on the ability and willingness of the City to continue to furnish that vitally needed service in the future.’ ”
Austin,
The Burnses are attempting to separate the recreational program of ballet conducted within the civic center building from the maintenance of the building in which the recreational program is conducted. In other words, they are taking a single municipal activity and dividing it into two components, one governmental and one proprietary. This strategy to isolate the activity from the facility was proposed and rejected in
Austin,
“Mrs. Austin suggests that we adopt the test set out by the Supreme Court of Michigan in Pichette v. Manistique Public Schools,403 Mich. 268 ,269 N.W.2d 143 (1978). Boiled down, this test recognizes as governmental the decision to perform a function and as proprietary the actual performance of the function. That is, deciding whether to operate and supervise a playground or swimming pool is a governmental function, but the operation and supervision of the playground and swimming pool comprises a proprietary function. In practical effect, this test abrogates, to all intent and purpose, the doctrine of sovereign or governmental immunity____”
To support their position, the Burnses cite the Ohio case of
Eversole v. City of Columbus,
In Eversole, a plaintiff enrolled as a student in a municipal arts and crafts school organized by the City of Columbus. While using the arts and crafts center, the plaintiff *306 entered a closet and fell down an unlit stairway sustaining injuries. The plaintiff sued Columbus and the City answered asserting the school was a governmental service. The Eversole Court disagreed and quoted the “most comprehensive decision” in Ohio for distinguishing between governmental and proprietary functions:
“ ‘In performing those duties which are imposed upon the state as obligations of sovereignty, such as protection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property, it is settled that the function is governmental, and if the municipality undertakes the performance of those functions, whether voluntarily or by legislative imposition, the municipality becomes an arm of sovereignty and a governmental agency and is entitled to that immunity from liability which is enjoyed by the state itself. If, on the other hand, there is no obligation on the part of the municipality to perform them, but it does in fact do so for the comfort and convenience of its citizens, for which the city is directly compensated by levying assessments upon property, or where it is indirectly benefited by growth and prosperity of the city and its inhabitants, and the city has an election whether to do or omit to do those acts, the function is private and proprietary.’ ”
Eversole,
In contrast, the test to distinguish betweeri proprietary and governmental functions in Maryland is different than that in Ohio — Austin recognizes that municipal recreation programs are governmental services. Moreover, the Court itself in Eversole recognized the inconsistency in Ohio case law concerning municipalities and immunity and provided no rationale for its decision other than that the voluntary establishment of a program created a proprietary function.
*307 In Dohm, a plaintiff who attended an anniversary celebration in a rented hall in a municipal building was injured when she fell down allegedly dimly lit steps. The Supreme Court of Michigan determined that the Village of Acme was not engaged in a governmental service when it rented the hall:
“Obviously the use of the hall for the holding of an anniversary party of the character here involved had no connection with the exercise of any governmental function. It was a purely private transaction and of the character that the owner of a building adapted to the holding of such gatherings might enter____ The amount of rental charged is not of controlling significance. The determining factor is the nature and purpose of the use on the occasion of the injury suffered by [plaintiff].”
Dohm,
The Burnses seem to ignore the public benefit of having a local ballet production. This recreational program is no less beneficial than the maintenance of a park or a sports facility. Music and dance uplift the spirit of the citizenry and provide an escape from the drudgery of day-to-day existence. In short, the presentation of a ballet can be interesting, educational and inspiring. As the Court of Appeals noted in
Austin,
“ ‘[t]o deny the City the protection of its cloak of governmental immunity in the operation of an activity necessary to health, education and welfare ... must have a chilling *308 effect on the ability and willingness of the City to continue to furnish that vitally needed service in the future.’ ”
Since the ballet program was legislatively authorized, for the public benefit with little or no dollar profit or emolument to the municipality, benefited the public health, education and welfare and had no element of private interest, we hold the court was correct in concluding the nature of the activity in question in the case sub judice was governmental bather than proprietary.
III. WAIVER OF DEFENSE OF IMMUNITY
The Burnses also suggest that the award of summary judgment on the basis of immunity was improper because Rockville waived the defense. They assert that because Rockville’s articles of incorporation and the city charter provide that the corporate body may “sue and be sued,” the right to the cloak of immunity was forfeited.
As we quoted from
Kranz,
The Court of Appeals in
Lohr v. Upper Potomac River Commission,
“In considering the question of whether the words ‘to sue and be sued’ ... was intended to constitute a waiver of immunity, we must not confine ourselves to those words alone, but we must construe them in connection with the other language of the Act.”
The Court continued:
“The sentence in which those words are used is ‘with the right to use a common seal, to sue and be sued, and to do any and all other corporate acts for the purpose of carrying out the provisions of this Act.’ That sentence must be considered in its entirety, and when so considered, it definitely is not a general consent to suits of any and all kinds, but it is expressly limited to such actions as would be necessary in order to carry out the purpose for which the Commission was created.”
Lohr,
In contrast to the holdings in
Lohr
and
O & B,
the Court of Appeals found waivers of immunity in
Katz v. Washington Suburban Sanitary Commission,
*311
Similarly, in
Bradshaw,
“The first sentence of § 1013 [6] is unambiguous in stating that the county may be sued in tort actions ‘in the same manner and to the same extent that any private person may be sued.’ We think this sentence expresses the county’s determination to waive the immunity it would otherwise enjoy at common law for its acts performed in a governmental (as opposed to a proprietary) capacity. By providing that its amenability to suit shall be ‘in the same manner and to the same extent’ as that of ‘any private person,’ the county has accepted liability for those torts, but only those torts, for which ‘any private person’ would be responsible, either directly or derivatively. In other words, we think that the county intended to waive its own immunity, and to subject itself to liability under the same circumstances as if it were a ‘private person.’ ”
Finally, in Kranz, the Court of Appeals ruled that Md. Code Ann. Art. 28, § 2-111 (1957, 1986 Rep.Vol.), 7 waived *312 immunity for both governmental and proprietary functions of the Maryland-National Capital Park and Planning Commission, but such .waiver was limited. The Court held that for certain claims, particularly claims based on malicious acts, gross negligence, liability exposure in excess of insurance limits, punitive damages, or for any liability not covered by the Commission’s insurance, the defense of immunity is still available to the Commission.
Turning to Rockville’s articles of incorporation and charter, we hold the trial court was correct in concluding no waiver occurred. These documents that permit the body corporate to “sue and be sued” do not authorize general tort liability as was clear in
0 & B.
Unlike in
Kranz,
the documents make no mention of civil or tort liability at all. Instead, Rockville’s corporate papers do recognize an avenue for redress by those injured when Rockville is engaged in a proprietary function. They also provide the power for Rockville to seek redress if an injustice against it has occurred. Since a waiver of immunity must be legislatively authorized,
Katz,
IV. CONSTITUTIONALITY OF GOVERNMENTAL IMMUNITY
Finally, the Burnses urge this Court to abolish the doctrine of immunity as applied to municipal corporations because the distinction between governmental and proprietary functions denies equal protection and due process of law and is contrary to governmental responsibility. They assure us that since municipal immunity was established by judicial decision rather than by the General Assembly, this Court possesses the authority to accomplish their request. We do not accede to their request.
Repeatedly, when asked to abolish state or municipal immunity, the Court of Appeals has declined to do so.
See Austin,
“In practical effect, [Mrs. Austin asks to] abrogate[ ], to all intent and purpose, the doctrine of sovereign or governmental immunity, and, this, we have decided, should not be done by judicial decision. Although aware that the guidelines we have established are at times difficult to apply, we do not believe that they are ’irrational, unjust and unworkable.’ They were developed over a period of years by decisions of this Court on a rational basis. *314 They are consistent with sound public policy. They have worked effectively in their application to divers factual situations.”
The Court also noted that in light of the fact that the Legislature has had numerous invitations to modify the doctrine, and has declined,
“[i]t is manifest that our position, long firmly established, that if there is to be further change in the doctrine the legislature should make it, encompasses not only the ancient common law concept but also the engrafting thereon by judicial opinion the aspect of municipal tort liability.” (Footnote omitted.)
Austin,
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
Notes
. At oral argument, counsel for Rockville stated that the cost of a ticket to one of the Ballet’s performances was $1.50.
. Neither party has raised the issue of the application of Rule 2-322(c). Rule 2-322(c) provides that the defense of governmental immunity may be raised in a preliminary motion to dismiss and, if so, "shall be determined before trial____’’ This inferentially suggests that the issue of immunity will always be decided by the court rather than by a jury even if a factual issue is generated. This is further supported by another provision in the same Rule which singles out the defense of failure to state a claim and states that, if a factual issue is raised with respect to a motion to dismiss for failure to state a claim, only then do the rules for summary judgment apply. Since the parties did not raise this issue, we do not decide it.
. 1970 Md.Code Ann. Art. 25A, § 5(S).
. At the hearing on the motion for summary judgment, the Burnses procured the following stipulation: "The parties stipulate that [Rock-ville] has funds available to satisfy any judgment entered in this case and/or it has the requisite power to raise the funds necessary to satisfy any judgment entered in this case."
. Section 1-3 provided:
“ ‘The members of said commission shall be a body corporate by the name of the "Washington Suburban Sanitary Commission,” with the right to use a common seal, to sue and be sued, and to do any and all other corporate acts for the purpose of carrying out the provisions of this chapter. In the event of a judgment at law or in equity being recovered against said commission or for the purpose of amicably adjusting threatened or pending litigation, the commission shall at the annual tax levying period of the county council of Montgomery County and the county commissioners of Prince George’s County next succeeding the rendition of said judgment or compromise, certify to said county council of Montgomery County and county commissioners of Prince George’s County, a tax rate, in addition to that required for its interest, serial bonds and sinking fund requirements, that will, when levied and collected under the provisions of ... [section 4-5 of this Code], produce an amount sufficient to satisfy said judgment or other sum including costs and counsel fees, if any, provided, however, that this provision shall relate only to any cause of action occurring subsequent to April 26, 1927----(Brackets in original.)
*311 Katz,284 Md. at 505-06 ,397 A.2d 1027 .
6. Section 1013 of the Prince George’s County Charter stated:
'“Governmental Liability. The County may be sued in actions sounding in tort in the same manner and to the same extent that any private person may be sued. The County shall carry liability insurance with adequate limits to compensate for injury to persons or damage to property resulting from negligence and other wrongdoings of its officers, agents, and employees. Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program.’ ”
Bradshaw,
. The provisions of Art. 28, § 2-111, which the Court construed, provided:
"(a) Establishment; purposes. — The Commission shall establish an adequate comprehensive insurance program:
(1) To compensate for injury to or death of persons or damage to property, resulting from negligence, malpractice or any other type of civil or tortious action of the Commission, or of its members, *312 staff, employees, and agents acting within the scope of their duties, acting without malice, and in the absence of gross negligence; and
(2) To provide protection for property of the Commission and for officials and employees acting within the scope of their duties, including a comprehensive workers’ compensation program. The Commission may purchase such other liability insurance as it deems necessary.
******
“(e) Governmental immunity. — The Commission may raise the defense of partial governmental immunity for any liability exposure in excess of insurance limits, when punitive damages are sought, or for any other liability exposure not covered by insurance. However, nothing in this section may be construed to be a waiver of the Commission’s total governmental immunity. This subsection is intended to include also all claims pending on June 1, 1978, provided that an insurance policy to cover such liability was in effect at the time the claim accrued.”
. Since we hold that there was no waiver of immunity, whether funds were appropriated for the payment of tort judgments is irrelevant.
See Ó&B,