 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Lowe v. Baldwin7/6/2004
A city is authorized to create ordinances that "prohibit, regulate, divert, control, and limit pedestrian or vehicular traffic upon the public streets, sidewalks, alleys, and bridges of the city." N.C. Gen. Stat. § 160A-300 (2003). Sovereign immunity applies to claims regarding this statute, as the exercise of this authority is a governmental function. Estate of Jiggetts v. City of Gastonia, 128 N.C. App. 410, 414-15, 497 S.E.2d 287, 290-91 (1998).
The fact that a city has the authority to make certain decisions, however does not mean that the city is under an obligation to do so. The words "authority" and "power" are not synonymous with the word "duty." . . . There is no mandate of action. Courts will not interfere with discretionary powers conferred on a municipality for the public welfare unless the exercise (or non-exercise) of those powers is so clearly unreasonable as to constitute an abuse of discretion.
Id. at 414, 497 S.E.2d at 290-91 (internal citations and quotations omitted).
"This Court has consistently disallowed claims based on tort against governmental entities when the complaint failed to allege a waiver of immunity." Paquette, 155 N.C. App. at 418, 573 S.E.2dat 717. Plaintiff's complaint fails to state or allege that the City waived governmental immunity. Without such allegation, plaintiff's complaint fails to state a cause of action. See id. ("In order to overcome a defense of governmental immunity, the complaint must specifically allege a waiver of governmental immunity."); see also Oakwood Acceptance Corp., LLC v. Massengill, __ N.C. App. __, __, 590 S.E.2d 412, 422 (2004) ("Since the complaint in this case does not include any allegations that the County has purchased liability insurance or otherwise waived its immunity, the trial court properly dismissed the negligence claim against the County."). This assignment of error is overruled.
IV. Conclusion
Plaintiff's complaint fails to state a cause of action against the City. The trial court did not err in granting summary judgment. The trial court's judgment is affirmed.
Affirmed.
Page 1 2 North Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|