This Court has extensively considered the entry of summary judgment pursuant to Rule 56 of Chapter 1A-1 of the General Statutes in the cases of
Kessing v. Mortgage Corp.,
When there is a motion for summary judgment pursuant to Rule 56, the court may consider evidence consisting of admissions in the pleadings, depositions, answers to interrogatories, affidavits, admissions on file, oral testimony, and documentary materials. The court may consider facts which are subject to judicial notice, such presumptions as would be available upon trial, and any other materials which would be admissible in evidence at trial. The motion shall be allowed and judgment entered when such evidence reveals no genuine issue as to any material fact, and when the moving party is entitled to a judgment as a matter of law.
An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action. The issue is denominated “genuine” if it may be maintained by substantial evidence.
Summary judgment provides a drastic remedy and should be cautiously used so that no one will be deprived of a trial on a genuine, disputed issue of fact. The moving party has the burden of clearly establishing the lack of triable issue, and his papers are carefully scrutinized and those of the opposing party are indulgently regarded. See also Gordon, “The New Summary Judgment Rule in North Carolina,” 5 Wake Forest Intramural Law Review 94.
*519 The record shows that plaintiffs allege and defendant admits, or competent evidence, without contradiction, shows: (1) that defendant is a municipal corporation; (2) that at the time of the negligence complained of defendant was engaged in a landfill operation for the purpose of disposing of garbage; (3) that this operation generated methane gas; (4) that for several years, by agreement with Forsyth County, defendant had been disposing of garbage collected outside its territorial limits in return for a payment by the County to defendant of one dollar per ton to dispose of the garbage at the landfill site; (5) that the City had purchased the land adjacent to Silas Creek Parkway, consisting of 84.37 acres, part of which was used for landfill and other municipal purposes, for the sum of $22,019; (6) that the City had sold approximately 26.5 acres for the sum of $255,780; and (7) that a portion of the total land sold by defendant was a 16.1 acre tract sold to Ed Owens during the year 1969 for the sum of $165,000.
Careful examination of the record reveals no genuine issue as to any material fact concerning defendant’s landfill operations affecting the question of governmental immunity. Thus, the only question remaining for decision is whether the trial judge correctly ruled, as a matter of law, that defendant was excercising its governmental powers in operating the landfill at the time of the negligence complained of.
This Court has not departed from the rule of govermental immunity adopted in the year 1889 in the case of
Moffitt v. Asheville,
“The liability of cities and towns for the negligence of their officers or agents, depends upon the nature of the power that the corporation is exercising, when the damage complained of is sustained. A town acts in the dual capacity of an imperium in imperio, exercising governmental duties, and of a private corporation enjoying powers and privileges conferred for its own benefit.
“When such municipal corporations are acting (within the purview of their authority) in their ministerial or corporate character in the management of property for their own benefit, or in the exercise of powers, assumed *520 voluntarily for their own advantage, they are impliedly liable for damage caused by the negligence of officers or agents, subject to their control, although they may be engaged in some work that will enure to the general benefit of the municipality. . . .
“On the other hand, where a city or town in exercising the judicial, discretionary or legislative authority, conferred by its charter, or is discharging a duty, imposed solely for the benefit of the public, it incurs no liability for the negligence of its officers, though acting under color of office, unless some statute (expressly or by necessary implication) subjects the corporation to pecuniary responsibility for such negligence. ...”
A municipality has only such powers as the legislature confers upon it.
Moody v. Transylvania County,
In 1917 the General Assembly enacted C.S. 2799, which provides :
The governing body may by ordinance provide for the removal, by wagon or carts, of all garbage, slops, and trash from the city; and when the same is not removed by the private individual in obedience to such ordinance, may require the wagons or carts to visit the houses used as residences, stores, and other places of habitation in the city, and also may require all owners or occupants of such houses who fail to remove such garbage or trash from their premises to have the garbage, slops, and trash ready and in convenient places and receptacles, and may charge for such removal the actual expense thereof.
C.S. 2799, later codified as G.S. 160-233, remained effective until 2 January 1972.
North Carolina is among the states recognizing the majority rule that the collection, removal and disposition of garbage by a municipality within its territorial limits constitutes a governmental function, and that there can be no recovery for wrongful death or personal injury against a municipality for negligent acts of omission or commission of its agents or servants while engaged in this governmental function.
Stephenson v. Raleigh,
We therefore hold that a landfill operation by a municipality for the purpose of disposing of garbage collected within its territorial limits is a governmental function. Governmental immunity would ordinarily preclude recovery from the municipality for wrongful death or personal injuries caused by the negligent acts or omissions of the municipality’s agents or servants. However, appellants contend that the City’s operations at the landfill off Silas Creek Parkway were proprietary rather than governmental because (1) defendant contracted with Forsyth County to dispose of the county garbage at the landfill operation in return for the payment of one dollar per ton, and (2) defendant held the landfill property for sale for profit and sold portions thereof for profit.
Defendant contends that it did not depart from the exercise of its governmental powers by contracting with Forsyth County to dispose of county garbage for a fee. Defendant argues that it used the landfill primarily to dispose of garbage for its inhabitants, a governmental function, and that the City did not realize profit from that operation.
In support of its argument, defendant relies upon
James v. Charlotte, supra; McCombs v. City of Asheboro,
In James v. Charlotte, supra, the Court held that the City of Charlotte was engaged in a governmental function when it removed garbage for its inhabitants for a fee which covered *522 only its actual collection and disposal expenses. We note that in James it is stated that the City acted pursuant to C.S. 2799.
In Osborn v. City of Akron, supra, the city operated a landfill for the disposal of garbage and allowed individuals and other municipalities to use the landfill for a fee. The plaintiff sued for damages for alleged nuisance created by the city’s landfill operation. The Supreme Court of Ohio rejected plaintiff’s' contention that the operation was proprietary, and stated:
“However, the primary use of this land fill is for the disposition of the garbage and refuse of the inhabitants of the defendant, and the incidental use of such fill by other municipalities and private individuals for a fee does not change the governmental nature of this operation to one of a proprietary nature.”
In McCombs v. City of Asheboro, supra, the Court of Appeals, in a dicta statement, said:
“As has been stated frequently by courts of other jurisdictions, actual profit is not the test, and the city will not lose its government immunity solely because it is engaged in an activity which makes a profit. Beard v. City and County of San Francisco,79 Cal. App. 2d 753 ,180 P. 2d 744 (1947); Watkins v. City of Toccoa,55 Ga. App. 8 ,189 S.E. 270 (1936); Hahn v. City of Ortonville,238 Minn. 428 ,57 N.W. 2d 254 (1953); Huffman v. Columbus,51 N.E. 2d 410 (1943); Griffin v. Salt Lake City,111 Utah 94 ,176 P. 2d 156 (1947); Marshall v. Brattleboro,121 Vt. 417 ,160 A. 2d 762 (1960). ‘The underlying test is whether the act is for the common good of all without the element of special corporate benefit, or, pecuniary profit.’ McQuillin, Municipal Corporations, 3d ed., § 53.29, p. 192 .. . .”
McQuillin, 18 Municipal Corporations § 53.46 (3d ed. 1963), at p. 247, in part, states:
Although there is authority which points to a contrary conclusion, the character of the acts of collecting and disposing of garbage, generally conceded to be governmental functions, is not, it is held by some courts, changed by the fact that a charge is made for the services, or because the municipality derives incidental revenue therefrom.
*523 Conversely, plaintiffs contend that defendant’s landfill operation became proprietary when defendant entered into an agreement with Forsyth County to dispose of county garbage for a fee, and when defendant prepared and sold the landfill property for profit.
We examine representative authorities supporting this contention.
In
Oliver v. Worcester,
“. . . [T]he plaintiff, while walking, using due care, upon a footpath which had been used by the public for more than twenty years, and had been laid out and graded from time to time and prepared and cared for by the town and city of Worcester, and was within the public common which had been used by the inhabitants of the town for a much longer period, fell into a deep excavation, made by direction of a joint committee of the city council, under the authority and at the expense of the city, in the course of repairing and improving a building standing within the common, used by the city principally for municipal purposes, but a substantial portion of which, both before and after the time of the accident, the city leased, and received rent for, either from private persons or from the county, and which was therefore held and used by the city, not for municipal purposes exclusively, but in considerable part as a source of revenue; . . .”
The Court apparently did not consider whether the city actually profited from leasing the building, nor did it discuss or define *524 its term “in considerable part” as used to describe the rental of the two rooms in the building.
In
Duggan v. Peabody,
In
Haley v. Boston,
In
Brown v. City of Sioux City,
In
Guthrie v. City of Philadelphia,
“The only defense urged is, in substance, that the city was engaged through its agents, in discharging a public municipal duty, and consequently that it is not responsible for the negligence which caused the injury. The answer to this, in my judgment, is twofold, first that the city owed no municipal duty in Delaware, and second that it was engaged in a private service for the benefit of the owners of the dock, for which it was entitled to compensation. It is unimportant that it performed the service gratuitously.
In
Town of Douglas v. York
(Wyo.),
We find the following statement in MeQuillin, 18 Municipal Corporations § 53.90 (3d ed. 1963) at p. 367:
The law in regard to liability for torts connected with public property, other than streets and sewers, may be briefly summarized as follows :
1. If an income is derived by a municipality from particular property owned or managed by it, it is liable for negligence in the care and management thereof. This is well settled and there are no conflicting decisions. Moreover, the amount of income is generally held to be immaterial as is, generally, the fact that the income is merely incidental.
In
Smith v. Winston-Salem; Thomas v. Winston-Salem,
“A municipal corporation, city or town, is an agency created by the State to assist in the civil government of a designated territory and the people embraced within these limits. Lee v. Poston,233 N.C. 546 ,64 S.E. 2d 835 . Its charter is the legislative description of the power to be exercised and the boundaries within which these powers may be exercised. Neither city charter nor ordinance enacted pursuant thereto have extraterritorial effect unless authorized by legislative grant. Holmes v. Fayetteville,197 N.C. 740 ,150 S.E. 624 ; S. v. Eason,114 N.C. 787 ; Dean Milk Co. v. Aurora,14 A.L.R. 2d 98 ; Hyre v. Brown,49 A.L.R. 1230 and annotations; Donable v. Harrisonburg,104 Va. 533 , 7 Ann. Cas. 519;37 Am. Jur. 736 .
*527 “When plaintiffs, with the assent of defendant, connected their sanitary facilities with defendant’s main, defendant impliedly contracted to furnish services reasonably suitable to plaintiffs’ need and not to injure plaintiffs by a breach of their contractual obligation. Defendant, in furnishing these services, was acting in a 'proprietary capacity. Asbury v. Albemarle,162 N.C. 247 ,78 S.E. 146 .” (Emphasis added.)
Plaintiffs rely heavily on the case of
Glenn v. City of Raleigh,
“Considering plaintiff’s evidence in the light most favorable to him, and disregarding defendant’s evidence which tends to establish another and a different state of facts, or which tends to impeach or contradict his evidence, which we are required to do on the motion for judgment of nonsuit (Atkins v. Transportation Co.,224 N.C. 688 ,32 S.E. 2d 209 ; Singletary v. Nixon,239 N.C. 634 ,80 S.E. 2d 676 ), it is our opinion that the net revenue of $18,531.14 for the fiscal year 1 July 1952 to 30 June 1953 received by the city of Raleigh from the operation of Pullen Park for that period, which was used by the city for the capital maintenance of the park area, building items, paying salaries, buying fuel, etc., (the evidence that the $18,531.14 was spent in the amusement area only is the defendant’s evidence) was such as to remove it, for the purposes of the consideration of a motion for judgment of nonsuit, from the category of incidental income, and to import such *528 a corporate benefit or pecuniary profit or pecuniary advantage to the city of Raleigh as to exclude the application of governmental immunity. ...”
On appeal from retrial, this Court affirmed a judgment for plaintiff.
Glenn v. Raleigh,
The case law defining governmental and proprietary powers as relating to municipal corporations is consistent and clearly stated in this and other jurisdictions. However, application of these flexible propositions of law to given factual situations has resulted in irreconcilable splits of authority and confusion as to what functions are governmental and what functions are proprietary. In this jurisdiction the cases of Glenn v. Raleigh, supra, and James v. Charlotte, supra, preserve this tradition of confusion by adopting apparently divergent views as to the effect of receiving income while performing an otherwise governmental service.
The Glenn cases do not disclose that this Court considered whether there was statutory authority for the city to charge a fee for the use of park facilities. It should be noted that in James the city was serving only those within its territorial limits and was acting pursuant to a statute which authorized it to remove garbage from habitations and other places from “the city . . . and to charge for such removal the actual expense thereof.”
Under the provisions of G.S. 160-234, the City of Winston-Salem had authority “summarily to remove, abate or remedy . . . everything in the city limits, or within a mile of such limits, which is dangerous or prejudicial to the public health; and the expense of such action shall be paid by the person in default and, if not paid, shall be a lien upon the land or premises where the trouble arose, and shall be collected as unpaid taxes.”
The City of Winston-Salem did not elect to rely on the provisions of G.S. 160-234, but chose instead to
contract
with the county for disposal of its garbage. By so doing, the City avoided the possibility of being forced to exercise its powers to remove, abate or remedy accumulated garbage which might have become dangerous or prejudicial to the public health of its citizens. Under the agreement between the county and the City, licensed private collectors picked up garbage in areas outside the city limits and delivered it to the city’s landfill site. By use of the
*529
contract, rather than the provisions of G.S. 160-234, the City could extend its protection against accumulated garbage and refuse for more than one mile from its territorial limits. Also, the City avoided the possibility of having to collect the cost of removal of garbage pursuant to the statute; and, further, avoided the very real possibility of litigation to enforce the lien provided by the statute. Thus, there were advantages under the contract with Forsyth County which inured to the City’s special corporate benefit and thereby brought defendant within the often announced rule that a municipality acts in its proprietary capacity when it receives special “corporate benefit or pecuniary profit.” McQuillin, 18 Municipal Corporations § 58.29 (3d ed. 1963) at p. 1692.
Bolster v. Lawrence,
It would seem that the City has again assumed the same posture as in the case of Smith v. Winston-Salem, supra, where this Court stated that the City, by rendering its sewage disposal service to persons located outside its territorial limits on a contractual basis, “was acting in a proprietary capacity.”
At this point we stand at a crossroads created by the courts’ applications of the various rules of governmental immunity. Here, it is impossible not to be impressed by the striking factual similarities between the Glenn cases and instant cases. In Glenn, as here, the city was exercising a power generally recognized as governmental. In Glenn, as here, the city received income which was not an actual profit. In Glenn the city received 11.7% of the cost of maintenance of its parks. Here, for the period 1 July 1968 to 1 July 1969 (the fiscal period of the City of Winston-Salem immediately before the explosion in the ensuing month of September), the City received 9.39% of its cost for the landfill operations from payments made by Forsyth County for disposal of its garbage.
We again decline to abrogate the firmly embedded rule of governmental immunity. However, we recognize merit in the modern tendency to restrict rather than to extend the application of governmental immunity. This trend is based,
inter alia,
on the large expansion of municipal activities, the availability of liability insurance, and the plain injustice of denying relief to an individual injured by the wrongdoing of a municipality. A corollary to the tendency of modern authorities to restrict
*530
rather than to extend the application of governmental immunity is the rule that in cases of doubtful liability application of the rule should be resolved against the municipality.
Gorman v. Adams,
Applying the rules of law herein stated, we hold that the City of Winston-Salem was exercising powers voluntarily assumed for its own corporate benefit at the time of the negligence herein complained of, and that at the same time the City was receiving revenues over and beyond incidental income, which income “imports such a corporate benefit... or pecuniary advantage to the city as to exclude application of governmental immunity.”
We hold that the City of Winston-Salem was acting in its proprietary capacity at the time of the negligence herein complained of.
The judgment of the Superior Court is
Reversed.